Has this ever happened to you?  You are an attorney for the underdog, representing someone hurt by the indifference, carelessness or greed of a large institution.  You are on the right side of the case.  Morally and legally, you deserve to win.  You believe you are scoring points with the judge and jury.  The other side’s arguments are weak and disorganized. 

And then you lose. 

How did that happen?

We think we have some answers, and some ways to keep it from happening again.

The defense wields three weapons to defeat plaintiffs’ cases that should be won:

• Complexity,
• Confusion, and
• Ambiguity.

Complexity, confusion and ambiguity are insidious enemies.  They creep up when you are not looking.  They rarely attack head-on.  They are particularly abundant and pernicious in complex cases such as insurance bad faith or medical malpractice.  This is because both the facts and the jury instructions in these cases are often complex, confusing and ambiguous.  But these enemies appear in simple cases too.

Sometimes, complexity, confusion and ambiguity are inherent in the case; other times, they proliferate due to a conscious defense strategy of confounding the jury and judge with endless, immaterial detail.  In either event, you must defeat complexity, confusion and ambiguity, or they will defeat you.

In this book, we set out a technique to neutralize these three defense allies and bring clarity and focus to any case.  It has helped us win worthy cases that otherwise might have been lost. 

We wrote this book for our fellow attorneys who represent consumers, patients, and other real people in lawsuits to redress injustice and injury.  Between us, we have more than four decades of experience preparing and trying cases.  We have tasted the ashes of unfair defeat.  We have also enjoyed great successes.  We love our profession, and we chafe at the untruths peddled regularly these days by the rich and the powerful who don’t like it when we hold them accountable in a court of law.  Every time “our side” loses, the other side harrumphs that another frivolous lawsuit has flamed out.  Most of the time, we think the opposite is true: that frivolous defenses have triumphed because of complexity, confusion and ambiguity. 

Ultimately, this book is about how to breathe life into ambiguous legal standards and create an indisputable standard for everyone — judges, juries and defendants — to see.  The standard must be as clear as crossing a double yellow line on a highway. 

The Rules of the Road technique can help focus your own thoughts and efforts, so that you can focus the thoughts and efforts of the judge and jury.  It can help you work more productively and effectively — but you still have to do the hard work. 

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Here is what one lawyer said about Rules of the Road:

POLARIZING THE CASE: Exposing and Defeating the Malingering Myth

     In his new book Polarizing the Case, Rick Friedman teaches you not to fear allegations or insinuations that your client is malingering or exaggerating injuries.  Instead he provides, in his own words, "a guidebook for wrapping the malingering defense around the neck of the defense lawyer and strangling him with it."

Introduction

     I began practicing law in 1979, it was rare for defense lawyers to accuse a plaintiff of malingering. Maybe they knew jurors would not be receptive to such arguments, absent definitive proof. Perhaps jurors have always been receptive, but defense lawyers back then felt constrained by their role as officers of the court, or by basic human decency. Whatever the reason, they usually refrained from attacking people as liars and cheats when they knew it wasn’t true.

     I enjoy speculating about such things, but don’t pretend to know what accounts for the change. What I do know is that the malingering defense seems to crop up everywhere now. In personal injury cases, large and small, in medical malpractice, even contract cases, the defense will frequently find a way to imply, insinuate, or outright accuse the plaintiff of being a liar, a cheat, and a fraud.

     Most plaintiff lawyers have had the unfortunate experience of watching a strong case defeated by preposterous allegations of malingering. We may chalk up the verdict to a random bad jury or a biased judge. But then it happens again. And again. Not just to us, but to our professional friends and associates.

     These tactics can be seen most clearly in what the insurance industry has labeled “Minor Impact Soft-Tissue” (MIST) cases. About fifteen years back, the industry made a decision to plug into public suspicions about plaintiffs and aggressively litigate these cases. The result has been to create the conventional wisdom in the plaintiff ’s bar that these low impact cases cannot be won.

     Of course, these tactics are not limited to MIST cases; they crop up everywhere, and it is often difficult to know how to deal with them.

     This book has a modest goal: to quickly and efficiently provide a blueprint for defeating the malingering defense. Actually, it is a guidebook for wrapping the malingering defense around the neck of the defense lawyer and strangling him with it.

     Part I progresses through the various stages of preparing and trying a case, showing how to polarize and defeat the malingering defense. I make no effort to comprehensively cover each stage. I am simplistic for the sake of clarity. Each chapter tries to explain what must be accomplished at that stage to defeat the malingering defense at trial. The chapter on written discovery, for example, makes no attempt to outline all written discovery you should propound in a particular case.

     Part II shows polarizing principles in action. This part uses real trial transcripts to show the polarizing process from start to finish.

     The insurance industry has done a spectacular job of convincing the public—our jury pool—that people who make injury claims are not hurt and are exaggerating for monetary gain. It’s not generally true, but it is powerful because it can be true—even if infrequently. This book is not for cheaters. None of us want to help anyone get away with what amounts to larceny. This book is designed to help you protect the innocent victims of this widespread character-assassination.

     The morally bankrupt strategy of accusing honest victims of being liars, cheats, and frauds has dominated American courtrooms for too long. I hope this book will help you get your clients the justice they deserve.

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     Here is what one young lawyer did with his advance copy of Polarizing the Case:

In the first trial, I was objected to 3 times in the first 30 seconds of opening-needless to say, the jury KNEW I was polarizing the case. I gave them 2 choices. The judge called me to the bench and whispered, 'What the hell are you doing?' I was a little nervous. I replied, 'your Honor, I am perfectly entitled to do this. I got this from a book. Besides, isn't this why we are really here?' He looked dumbfounded, then said, 'OK, move along now.' We worked hard trying to accomplish the ideas from Polarizing the Case. I think we did a good job. The jury came back with $700,000 for a rotator cuff injury. The book is marvelous.

Rick talks about 'leaving our safe cave, drawing the sword, and fighting the dragon.' We did this again in the second case after being attacked in Voir Dire. The Jury came back with full justice; $4,000,000 for the wrongful death of a wonderful man to colon cancer. Rick teaches us to polarize more than just the facts, but the people and lawyers too. Using the Polarizing method, the jury knows who is honest in the end!!!

- Joseph P Cullan, The Cullan Law Firm, Omaha, Nebraska

  To order Rules of the Road or Polarizing the Case, click here.