For more information about this year’s conference, click on this link:  http://www.sproutvideo.com/videos/4c98d2b41a1debc1c4

2011 Best Law Office of North Hawaii

Harry Plotkin:  I have always found it amusing that trial lawyers spend so much time focusing on (or worrying about, if you’re representing a defendant) the influence of sympathy on jurors. For those of you who think sympathy matters to jurors, let me make a correction that may seem trivial, but matters quite a lot when it comes to jury decision-making.

As any vocabulary stickler would tell you, sympathy and empathy are not the same, and the word “sympathy” is often misused.

Sympathy is a passive process that involves pity: feeling sorry for someone without understanding how they’re feeling. Empathy is an active process that involves understanding someone else’s feelings by identifying with them, putting oneself in the other person’s shoes.

The word “sympathy” gets thrown around quite a bit in all kinds of trials, often by judges and civil defense counsel and either side in a criminal trial. Will the jurors promise not to allow sympathy to influence or cloud their judgment? Jurors are constantly asked this question. Civil defendants often worry about jurors sympathizing with the plaintiff in wrongful death trials, personal injury trials, employment trials, and even business trials, especially when the plaintiff is an individual facing a corporation. Criminal defendants often worry about jurors sympathizing with the alleged victims of serious or violent crimes. Even criminal prosecutors sometimes worry about jurors sympathizing with accused defendants when they appear remorseful or seem to be a good person or are facing serious consequences and jail time.

Jurors are often asked about sympathy, but sympathy isn’t the real problem: empathy is. In the courtroom, sympathy would involve a juror feeling sorry for a litigant without putting themselves in the litigant’s shoes, and that does not happen much. Probably because our society has become so judgmental, especially when we are being asked as jurors to judge the conduct of others, few jurors are influenced by sympathy. But to jurors, empathy can be incredibly influential. Empathy involves jurors feeling sorry for a litigant when the juror imagines “that could have been me.”

Jurors rarely support litigants who have suffered tragedies. In fact, jurors have a natural instinct to insulate themselves from feelings of danger and vulnerability. Sympathetic or not, jurors are motivated to distance themselves from empathizing with victims by convincing themselves that the same thing could never happen to them. Realistic or not, it helps jurors sleep at night. But jurors do support litigants who they can identify with and feel empathy towards, when the juror cannot help but imagine the same thing happening to them.

I’m not suggesting that judges stop talking about “sympathy” and start using “empathy” instead. When jurors talk about sympathy, they’re usually talking about empathy. But as lawyers who worry about your jurors being influenced by their feelings, you need to understand the distinction. Worry less about your jurors being influenced by pity, and worry more about your jurors’

capacity to identify with the opposing litigant and their decisions. And most importantly, you need to focus on preventing your jurors from identifying with the opposing litigant.

Preventing your jurors from identifying with the opposing litigant is incredibly important, and cannot be done by asking your jurors to “promise not to let sympathy influence” their decisions. Instead, you need to “disconnect” your jurors from the seemingly-similar opposing litigant by pointing out key differences in voir dire. The key to disconnecting your jurors from the other side is to craft your questions so that they subtly reinforce the idea that the juror made the “right”

decision, the subtle and subconscious conclusion being that the litigant made the “wrong” one. You won’t have to talk about “right” or “wrong” directly; your jurors are already wired to believe that they’re always right. And your jurors will do the talking for you; simply ask them “why?” they made the decisions that they have.

You can apply my “disconnecting” methods to almost any kind of trial. In one trial, we were concerned that the jurors would identify with an individual defendant employee who breached a non-compete agreement. It’s easy to understand why; most working jurors have no trouble empathizing with fellow employees and protecting the principle of employee freedom in an unstable job market. So we asked a few voir dire questions to subtly convince our jurors that THEY were smart to be at-will employees and that the defendant should blame himself for signing a non-compete contract.

“How many of you are working right now as “at-will” employees, without a contract? How many of you have NEVER signed a restrictive employment contract and have always been an at-will employee? How many of you would NEVER sign a non-compete agreement that restricted your freedom to leave your job and go work for a competing company? Why wouldn’t you?”

I have no doubt that our jurors would have been very likely to identify and empathize with the individual defendant had we not forced them to think about this distinction. Forcing our jurors to recognize the difference between themselves and the defendant helped. The real key was taking the question a step further by asking the jurors to explain why they would never do the same thing the opposing litigant did. The next time you worry that your jurors will identify with someone injured in a car crash, an inventor claiming their intellectual property was misappropriated, an employee claiming to have been mistreated, a homeowner claiming to have been cheated, or a business person claiming to have been defrauded, focus on disconnecting your jurors from feeling empathy and forget about creating sympathy.

For those of you representing the victim or the individual, you need to do just the opposite: establish a connection between your jurors and your client. Forget about fostering sympathy; sympathy is worthless if your jurors can’t imagine the same thing happening to them. Recognize that most jurors are not motivated to feel empathy and are instead motivated to insulate themselves from feeling vulnerable. In other words, your jurors’ first instinct is usually to convince themselves they are different than the plaintiff, not the same.

So you need to ask voir dire questions that force your jurors to confront the key similarities between themselves and your client. There’s a reason I used the word “force.” Many jurors have unrealistic views about how careful and logical and perfect they are in most situations. Very few jurors admit in voir dire, even to themselves, that they aren’t perfect drivers. That they don’t always take extra safety precautions. That they aren’t usually diligent about double-checking important things.

That they usually don’t read every word of the contracts they sign, the warning labels of products they buy, or the user manuals of the machines they use.

In voir dire you will often have to force your jurors to realize that they are not always as perfect as they would like to believe. You’ll have to craft your questions to be detailed and specific, because jurors will usually believe that they are “always” careful and safe and diligent, in general. Don’t ask your jurors “how many of you sometimes don’t check your side-view mirrors before you change lanes?” They’ll usually claim that they do. Ask them specific questions that they’ll more easily remember, like “has anyone here ever been changing lanes and successfully prevented an accident with a car you didn’t see in the lane? Why weren’t you able to see the car at first…?”

In every case you take to a jury, spend some time thinking about the admitted mistakes or unfair criticisms your client will have to face, and deal with them directly in voir dire. Only by getting your jurors to internalize your client’s questionable decisions can you deactivate your jurors’ instinct to blame and activate their ability to empathize. Luckily for you, you get to ask the voir dire questions first, before the defense has the chance to get jurors thinking about the differences.

Two of Honolulu’s leading attorneys, Ian Mattoch and Stan Levin, can easily be described as modern-day gladiators.  In and out of the courtroom, each man charges into battle, fronted by hope and the law, backed by the desire to aid those less able to fight… 

Click here for link to the article:  http://www.hiluxury.com/leading-charge/

“Faces of Distracted Driving” is a video series that raises awareness about the potentially tragic consequences of texting and cell phone use while driving by sharing the stories of family members who have lost loved ones in distracted driving crashes. In 2009, nearly 5,500 people died and half a million were injured in accidents involving a distracted driver. The series is part of Secretary LaHood’s effort to raise greater awareness about the dangers of distracted driving.

To learn more about USDOT’s efforts to stop distracted driving, please visit: www.distraction.gov

To access the “Faces of Distracted Driving” videos, click here: http://www.distraction.gov/content/faces/

The Employee Retirement Income Security Act of 1974 (ERISA) is a federal law that sets minimum standards for pension plans in private industry.  Many medical insurance plans paid by or in part by an employer are ERISA plans regulated under the Department of Labor’s federal laws.  In all ERISA medical insurance plans, there is language that states the right of full recovery of all accident medical expenses paid at the time the injured parties receives any third-party recovery or settlement. 

Since the United States Supreme Court decision of Sereboff v. Mid-Atlantic Medical Services, Inc., 547 US 356 (2006), there has been much debate regarding the scope of an ERISA reimbursement claim.  The US Airways decision offers a new lien resolution framework in personal injury claims that involve accident-related medical expense payments from an ERISA plan.  The Third Circuit took this position based on Congress’ intention that equitable consideration be taken into account when considering the reimbursement claims of ERISA plans.  Although these reimbursement claims are defined in ERISA contractual plan language, the Court found that adequate consideration be given to the facts of the case and not solely based upon whether or not the ERISA plan is “justly” enriched or reimbursed. 

The US Airways decision concludes that in applying equitable principles of recovery, settling parties should strongly consider the need to take into account procurement costs, perhaps in the same manner that Medicare and Medicaid recovery contractors do, regardless of plan language.

In addition to the new applications, Social Security has also recently made online estimates of retirement benefits available in Spanish.  People interested in planning for retirement can get an immediate, personalized estimate of their Social Security benefit by using the Retirement Estimator at www.segurosocial.gov/calculador.  Using people’s actual wages from their Social Security record, the Estimator gives a good idea of what to expect in retirement.  Workers can enter in different dates and future wage projections to get estimates for different retirement scenarios, which is why this service is one of the most highly rated electronic services in the public or private sector.

This update was prepared by Susan L. Vaughn, Director of Public Policy, publicpolicy@nashia.org.   William A.B. Ditto, MSW, is Chair of the NASHIA Public Policy Committee.  Rebeccah Wolfkiel is Governmental Relations Consultant, rwolfkiel@ridgepolicygroup.com. 
 The National Association of State Head Injury Administrators assists State government in promoting partnerships and building systems to meet the needs of individuals with brain injuries and their families.

In 2009, Secretary LaHood launched a national anti-distracted driving campaign to combat the growing trend of dangerous distracted driving behavior in America. The U.S. DOT has launched a dedicated website, www.distraction.gov, to provide the public with a comprehensive source of information on distracted driving.

The Department has also hosted two national summits devoted to the issue, crafted sample legislation which States can use to adopt distracted driving laws, and initiated pilot law enforcement programs inHartford,Conn., andSyracuse,N.Y., modeled after the Department’s successful efforts to increase seatbelt use and curb drunk driving.

This update was prepared by Susan L. Vaughn, Director of Public Policy, publicpolicy@nashia.org.   William A.B. Ditto, MSW, is Chair of the NASHIA Public Policy Committee.  Rebeccah Wolfkiel is Governmental Relations Consultant, rwolfkiel@ridgepolicygroup.com. 

The National Association of State Head Injury Administrators assists State government in promoting partnerships and building systems to meet the needs of individuals with brain injuries and their families.

NAMD seeks a dialogue with federal partners around the following objectives: 

-        Focus on improved health care outcomes over bureaucratic process measures.

-        Streamline business practices to ensure state flexibility and spur greater innovation in the program.

-        Support a system for rapid dissemination of best practices so that all states can benefit from identified advancements.

Many of Medicaid’s challenges are a result of failures in the broaderUShealth care system, not intrinsic to Medicaid itself. These problems include inefficiencies, duplication of services and uncoordinated plans of care.  These problems will be further compounded by the expansion of the program in 2014 if Medicaid’s current policy and business practices remain unchanged.  Changing the culture of the program is the only way that Medicaid can be assured of achieving the following goals:

-        Improved health care outcomes for beneficiaries;

-        Safety net services that are delivered at the appropriate time in the appropriate setting;

-        A fiscally sustainable program for both states and the federal government;

-        A program that is a leader and driver in improving the health care system.

NAMD has identified many of the barriers that stand in the way of these shared, common sense goals.  The current nature of the federal–state relationship means that innovations may take years to garner the needed permissions, and even then program structures are insufficiently flexible to meet the changing nature of the health care system.

“Much of the potential gain from states serving as the laboratories of experimentation has been lost.  The transaction costs of innovation in Medicaid have simply been too high and the dissemination of best practices and successful innovations has been too slow,” said Andy Allison, Kansas Medicaid Director and President of NAMD, “Addressing these challenges will entail new roles for states, the federal government and program stakeholders.”

NAMD offers a number of ideas for creating a climate for innovation.  One key concept is the retooling of the existing demonstration waiver process.  Too often, program improvements are implemented in small pilots, but rarely translated statewide.  NAMD offers the idea for an “HOV” program (Healthy people, Outcomes, and Values), which is an innovations highway for the testing of new ideas, and the ability to rapidly make effective practices the standard of care for all recipients.

“Transformation is an evolving process. Medicaid can and should be part of this process to achieve better quality at a lower cost,” said Darin Gordon, Tennessee Medicaid Director and Vice President of NAMD. “The nation’s Medicaid directors seek ways to continue to reach for these and other important goals outlined in NAMD’s paper.”

Allison said the tools and modernization paper could serve as a launch pad for modernizing a broad range of aspects of the Medicaid program and NAMD will be working to highlight those in the future.

The National Association for Medicaid Directors (NAMD) is a bipartisan, professional, nonprofit organization of representatives of state Medicaid agencies (including theDistrict of Columbiaand the territories). NAMD provides a focused, coordinated voice for the Medicaid program in national policy discussion and to effectively meet the needs of its member states now and in the future.  For more information, please contact Matt Salo at 202-403-8621.

TBISERV is the listserv for the Federal TBI Program. TBISERV is moderated by the Federal TBI Program’s TechnicalAssistanceCenter.  To search the TBISERV archives, visit https://list.nih.gov/archives/tbiserv.html