In late November, 2024 I was lead counsel for the Campione Law firm in Marion County, Florida for jury trial. The case involved a late 40's male who while sitting in his work van in a driveway was rear ended by a box truck who was reversing into the same driveway to do a delivery. The property damage was very minimal. The trial was four days and involved entering a surgical estimate into evidence, but getting the jury to award for two surgeries into the future while only having one estimate. The surgeries were also recommended about two years prior to trial and the plaintiff.  
The plaintiff had received 3 diagnostic injections.  One to the cervical spine, one to the lumbar spine and one to his right shoulder. During jury selection I asked the pool whether anyone would have trouble doing the right thing by someone they did not like. The reason for the question was because the cme doctor, who had testified he did not care for the plaintiff, and at trial doubled down on that notion, also testified to an aggravation of a preexisting condition. I started the trial by reading into evidence the deposition testimony of the defense cme expert stating my client had been caused an injury, and that it was a preexisting conditions that had been aggravated. 
During closing my goal was to have the jury understand their values were the same as my clients values. They were all locals and so was my client so I pointed out the things that my client loved to do that he can no longer do and related these activities to the joys of life for a local in Marion County.  
Opposing counsel was a 30 year trial veteran with over 100 jury trials.  Obviously a tremendous Lion and expert at trial advocacy.  I was honored to obtain a verdict of $3,085,000.00 for my client.
I am particularly proud of the verdict given by the jury because prior to the plaintiff becoming my client, about 5 months before trial, he had been represented by one of the biggest firms in Florida.  That firm's 4 attorneys had asked him to accept a $175,000.00 arbitration award.  
Full and Fair Value is what a plaintiff gets at trial.  Whichever way the jury decides, justice is done by them. Personal Injury Lawyers must trust the system, the process, and respect their job as advocates for someone who is needing help. Attorneys should not pass judgment over their clients. That is the jury's job after all. 

As I do more trials I consider aspects of my work that leave a deep impression on the way I evolve and work the next case.  I strive to set up my cases in the best way I can given the circumstances.  Those circumstances may be that there is a liability question that needs great attention, or damages are not continuing to accumulate because the client is no longer needing treatment.

My concern is to work with the nuances so that whatever weakness there is in a case, it may be minimized.  What this mindset caused me is enormous stress based on the need to control circumstances.  Once I realized that no trial is ever a perfect trial, but that the only thing we can truly strive for is a fair trial, my level of stress as well as understanding on what to do versus what not to waste energy on becomes more clear by the case.

For one, I no longer waste energy thinking about how to impeach a witness during a deposition.  The whole thing is now about obtaining testimony that may be productive for me at trial. Written discovery is a trench of friction that stops the process from moving forward as fast as it could.  Lawyers fear the unknown and spend enormous time arguing about irrelevant issues if jury trial is the goal. I mean, why try to impeach an expert during discovery if you already know you will do it before the jury?  Doing it during discovery just means the opposing party may simply try to resolve on the cheap.  If they get caught at trial, it's either going to be a sweat settlement or a verdict.

At this point, I make a list of what I need to prove to win, and then I look at my evidence and see if I have everything I need to prove every element or factor needed for a win.  If I have what I need, why waste time and energy arguing over discovery that I do not need?  

When it comes to injured plaintiffs in a negligence action, proof requires a confirmed collision, pictures, testimony that the accident occurred.  Then there must be confirmed injuries which come from the medical records, doctor and client testimony.  Causation of injury can be a tricky one if there low property damage because defendant's like to contest causation of injury by suggesting a logical fallacy by claiming common sense dictates injury could not occur due to a low property low speed accident.  However, the issue can be overcome by use of experts, as well as literature.

Ultimately, a good lawyer should know the rules of evidence extremely well.  These rules of evidence are what makes the difference between having what you need and knowing it, or wasting resources arguing over discovery issues that simply create friction and push the trial date back.  

If you have been the victim of an accident, please do not hesitate to reach us.  

Non economic damages are an interesting concept.  In some societies, the idea of receiving compensation for pain, suffering, inconvenience, mental anguish, permanent impairment, loss of enjoyment of life, and the aggravation or activation of a pre-existing condition is not accepted.  Some societies have accepted the notion that these types of damages are simply a tragic part of reality and exist in everyone's life in the natural state.

Our system of justice allows for compensation in these categories.  Our society has determined that although these types of damages express a tragic part of everyone's reality, when introduced unnaturally, by a freak set of circumstances, a person is in fact caused to experience these types of damages in a way and at a level that would otherwise not make them as prevalently obvious.  Therefore, we have non economic damages due to the impact on someone's life when their personhood is affected by the negligence, lack of care, or recklessness of another person.

Pain is physical in this category.  It is the expression of an experience an individual has due to an injury caused by another.  It can be continuous, but it can also be intermittent. Suffering is another category that is variable between every person.  Like pain, it is relevant to the specific person.  While one person suffers horribly over an event, another person moves on quickly and suffers little.  How do we measure that so as to monetarily compensate for it?

Inconvenience is an interesting non economic damage as well.  Some people express inconvenience over a broken air conditioner in the dead of summer, while other's are happy to sweat.  What does it mean though when a person is left to walk with crutches? Is it petty for someone to claim monetary damages due to inconvenience in those situations? and when is it not?

Mental anguish is a category is a different category for a person with psychiatric concerns, versus a person who does not have those concerns or exhibits a spirit who overcomes any mental pain.  When is it too much to ask for monetary award?  Some people are unfazed by death, while others cannot overcome the reality of it. 

Permanent impairment reminds me of Vincent Van Gogh.  He did it to himself because of his mental anguish over who knows what natural aspect of his reality.  Should he have a right to monetary compensation if someone else had cut off his ear?

What is loss of enjoyment of life?  Loved playing violin and now can't enjoy it because of the tremendous pain it causes due to a car accident?  That's my story.  Yes, playing violin was one of the greatest joys of my life.  I lost the ability to play without tremendous pain after a car accident.  No, I did not sue anyone but I could have an perhaps I should have.

What is the aggravation or activation of a pre-existing condition?  Is it supposed to be some dramatic difference in how ones body appears on an MRI or is it supposed to be a minor difference on how ones body appears on an MRI, but that minor difference has had an enormous effect on the body?  Why compensate for that?  Perhaps we should ask the elderly person with osteoporosis who is in a low speed car accident whether there is a major difference in their life due to that minor change.  

What's fair?  How does an insurance company calculate for that type of risk?  Can it? Should it have to?  

On March 24, 2023, Florida Governor Ron DeSantis signed HB 837 into law, effective immediately.  This Bill has certainly had a tremendous effect on the legal landscape of the state.  The question is whether the Bill has had the effect intended, or whether it ever will have that effect.  It appears the Bill was proposed out of fear the insurance industry would continue to increase its rates to consumers.  However, the Bill does not provide for any guarantees toward that notion. 

During a time the State of Florida is experiencing enormous population growth, increased tourism and vehicular traffic, the Legislature has gone backward in time by changing the law on fault and access to the judicial process for consumer in changing pure comparative fault into contributory fault as the standard for access to the courthouse. Floridians who do not have healthcare and who an adjuster decides is 51% at fault in an accident will not be able to access justice or obtain treatment for injuries. 1%... yes! Not decided by anyone else but an adjuster who is likely to receive bonuses for limiting payout.

The Bill also reduces the Statute of Limitations on negligence cases from four years to two years.  The idea is that by lowering the time period for a plaintiff to file suit, fewer will be filed.  The fact of the matter is that it will likely have the opposite effect in that many cases get resolved without having to file a lawsuit, and most people would rather negotiate out of court before filing a lawsuit.  If the time period for filing a lawsuit is reduced, then consumers are more likely to file their lawsuit than negotiate their claim by a difference of two years.

Governor DeSantis apparently thinks it is not concerning to have an insurance industry without oversight or operating without any mechanism that provides for accountability to his constituency.  I make this statement because HB 837 removes the separate cause of action known as bad faith.  Basically, an insurance company may do and act however it desires.

It is also concerning that there is a limitation on access to medical care.  If a person does not have health insurance, that person is highly likely to not be able to find medical treatment.  If the person has health insurance, then it will need to find a medical provider that accepts health insurance, and that is willing to testify.  Many medical providers that accept health insurance such as PCP's do not treat a person when the injuries are related to an accident.  This is because these medical providers do not want to get stuck having to testify in legal proceedings. 

What is interesting to me is that the Bill reduces choice, and places regulation on pricing and profits for medical practitioners.  It would appear to be in violation of regulation limiting trade and commerce.  It is interesting to see a Republican Governor and Legislature passing legislation that limits profits, sets pricing for medical services, and reduces access to the courthouse to consumers.  It seems a little anti-American to me.

Truck accidents can be a terrible situation for anyone coming into contact with them while on the road, or simply while idle behind them at a stop light or stop sign. The amount of momentum, weight and lack of maneuverability a truck as while in motion makes these vehicles particularly dangerous while on the road.  It is not uncommon to drive late at night only to be passed by a big rig truck going 80 plus miles per hour and swerving between lanes.  
When someone is impacted by a truck, it is important to seek medical attention when injured.  These vehicles have commercial policies of insurance and carry an enormous regulatory burden. The federal motor carrier safety regulations are a large body of rules intended to reduce the number of accidents and fatalities caused by commercial vehicles.  These are minimum standards of operation and relate to the need to protect the public given interstate commerce.
Some regulations involve how many hours a truck driver can drive in a day as well as how many breaks are required between drive time. If disabled, there are distance for cones behind the truck that must be placed within a certain time period. Communications must be had with dispatchers as well. Maintenance requirements, as well as weight of load is regulated. Ultimately, the drivers of trucks are professional drivers and are required to behave as professionals while on the road. 
If you are involved in a trucking accident on an interstate highway such as I-95, I-10 or I-295 in Jacksonville, Florida, it is important a lawyer that knows how to manage a truck accident case is called.  Usually an accident reconstructionist, oftentimes a Ph.D. will be employed to reconstruct the accident if necessary in order to determine speed, distance, and the forces transferred from one vehicle into the other and through the body of anyone inside the impacted vehicle. 
Krumbein Law PLLC has been very successful in representing clients who have been involved in truck accidents.  Even very difficult ones! Call us for a Free Consultation!

This topic is important because it is a topic that enrages those that do not understand the physics behind the frailty of the human body.  It always makes me wonder how it is possible that a defendant on a motor vehicle accident can argue through an expert that a crash dummy test did not result in damage to the dummy and therefore injury could not happen to a human being given the same testing condition.  It's almost insulting to the average intelligence to assume that the argument could cause someone to think the comparison is true.
Humans can simply fall while walking or running and hit their hears, break arms, herniate their spinal cords.  How many times has someone fallen off their bicycle while idly riding only to find themselves with a broken rib or a traumatic brain injury?  Yet, when it comes to a car accident with an estimate with low dollars, defendants rush immediately to defend based on the false logical fallacy that low property damage and low speed vehicular collisions cannot cause injuries.  
What is even more concerning is when defendants think that a person with pre-existing injuries did not experience aggravation of those pre-existing injuries when they are involved in a low property and low speed collision.  It is obvious that the two are inextricably connected.  It is far more unlikely to have injury in a perfectly healthy body when impacted in a low property and low speed collision than when a human body is compromised.  In the same token, it is far more likely that a highly compromised human body will experience aggravation of a pre-existing injury even when involved in a low speed collision. 
It is my belief that a highly compromised human body makes for a great plaintiff when injury occurs following a collision with low property damage given low speed impact. 

​Closing argument is the closing of a sale.  At least in format, and you are asking a group of people to buy your presentation of the case, and grant your “Ask” even though they are personally not going to benefit in any way aside from the spiritual notion that they have acted with a clean conscience in arriving at their determination.  Otherwise, you are selling.  Be okay with it, and do it from an honest place within you, or do not do it at all. 
            When you go up for your closing argument, remember, it is an argument and not a statement.  You must have gotten to know the jury very well by now and you must know how you can approach them.  Is it a “feels” or “thinks” jury?  Who are the confirmed leaders?  Who is not convinced yet of your client’s position?  You really have to cultivate the art of observation before you do a great closing. 
Some lawyers are very in tune with their jurors, and other live in a fantasy world with respect to what they think is going through a juror’s mind.  I have been a victim of my own delusions before, and I think every lawyer that takes lead at trial has had that happen.  The key is to recognize it as fast as possible and know that much of what you have to go with is intuition and figure out if you are experiencing a true signal or a false positive.
If you are doing the trial solo, then you will have been involved in every single aspect and nuance in the trial.  That is a very good thing when going in to deliver a closing argument.  The downside is you will probably be so exhausted that delivering a closing argument is going to require you dig into yourself and find the energy to finish the job with as much impetus as you had at the beginning of the trial.  Few people have this type of stamina. 
If you are doing the trial with a trial partner or partners, and you know you are the lawyer that will deliver the closing argument, you must know what has occurred throughout trial.  I once did a trial with a trial partner who was going to deliver the closing argument, and that lawyer spent a large part of the trial not paying attention to what was being testified to by the opponent’s experts.  Needless to say, further, on closing, this lawyer choked. 
Pay attention to the entire trial.  You will need to have reviewed the entire surveillance videos.  Read all deposition transcripts and pay attention to testimony through trial.  You must know the jury and they have to perceive you as someone who actually cares about the “justice” aspect of the case.  Your client has to be prepped to understand the same thing.  Especially if the client is not visibly injured, or their property is not catastrophically damaged.  If it is a breach of contract and there is question as to the materiality of the breach, you better make sure your client does not come across like a person that is overreaching. 
On closing argument, it is important that you are able to thwart the opposing sides arguments as much as possible.  Oftentimes you may file motions in limine that address some of the issues that you would like to limit from being stated at argument, and oftentimes the Court will simply defer ruling until the statements are made and an objection raised.  Unfortunately, those type of rulings do not help the situation much because once statements are made in front of the jury, they are having an application upon their perception that cannot be undone by an instruction by the Judge to disregard what they’ve heard. 
The ultimate purpose of the closing argument is to ask the jury to award damages or to limit the award in damages whether due to a request for a finding of no liability, no breach, no permanency in an automobile accident, or due to there not having been any damages at all.  Many young lawyers ask themselves what the limitations are for them to ask for damages.  This is especially true for plaintiff lawyers asking for non-economic damages. 
Some of the questions that arise include whether an expert is needed to talk about calculable mathematical equations.  Other questions involve the calculation of future medical treatment and inflation, or cost in the future.  Still other questions involve what happens if argument is objected to that results in the court sustaining the objection and then the entire ask is lost. 
The answer to a lot of these questions is to read case law on what is permitted in closing argument that does not constitute a trial lawyer testifying.  One of the more interesting methods is to employ what is called the “per diem” argument.  The lawyer relies on the jury’s right to rely on its common sense.  Juries get to make their decision on the law as instructed by the Court, the evidence presented and admitted at trial, and their own common sense.  The “per diem” argument allows a jury to employ their common sense as relates to the law as instructed and the evidence admitted.
Why is it accessing common sense?  Well, mathematics is the universal language and it is based on basic common sense.  So, one of the issues you must address at voire dire is whether there is anyone that is not capable of understanding basic eight grade mathematics involving addition, subtraction, or division. 
The argument goes along the lines of the following: imagine you have a client who is 30 years old and the life expectancy tables show that person is expected to live until the age of 70.  The client is injured enough that the life care planner testified, as did the doctors that there is need for future medical care that is expected to cost $200,000.00.  Testimony is that the client is permanently injured and will never be able to do something of importance for the rest of his or her life. 
We live in a world where everything is calculated by the hour.  We have a 24-hour day cycle, with 8 hours for work, 8 hours for entertainment, and 8 hours for sleep.  That means we have a 16-hour waking day.
Minimum wage in Florida is $8.46 last I checked.  Some of the jury members may think that is not high enough (another issue you should address in venire).  Then you pick a number you think your jury will consider reasonable for an hourly wage given the level of injury, and you must do this by way of your own intuition and feel for the jury.  Then you explain to the jury that because the experts testified that your client has a permanent injury (relevant in an auto crash case), your client has a right to what is called non-economic damages.
You have to explain what those are and how they are divided.   For example, you may tell the jury that non-economic damages are the types of damages that are considered intangible versus tangible.  You can give an example of the difference such as the car crash damaged the vehicle and because of the impact it required repair in a particular dollar amount as a tangible damage.  You can explain that an intangible damage would be something like mental anguish in that the client has been impacted psychologically enough that he or she is not experiencing life in the same way as before the crash, and certainly more so in a negative way.  Then you point to the fact that one has a particular dollar amount attached to it and the other does not.
Then you must explain that non-economic damages are also known as pain and suffering, inconvenience, loss of enjoyment of life, mental anguish, amongst others, and that those losses are not losses that are not real losses, and the law allows for them to be awarded.  Follow up with the question of how much is that worth?  How much is time lost worth?  How much is time worth when living in a condition far less in quality than prior to the crash? Then suggest an hourly amount and tell the jury you will now only suggest to them how to calculate the non-economic damages.  You must tell the jury they do not have to follow your method but that it is only a common sense suggestion for them to use if they agree with it in order to determine how much they would like to award in non-economic damage.
Then you begin calculating it for the jury in the following way.  Let us assume you picked $10 per hour per category.  There are 16 hours in the waking day, and 8 for sleep.  Let us make some assumptions that you will have to adjust in each trial given the evidence and testimony.  This calculation is definitely not the only way it can be done, and the hourly rate is also not the only way the per diem can be calculated.    
However, let us say testimony was that about two times per week your client has trouble sleeping due to nightmares about the crash.  That during the waking day the client is always in pain to some degree.  That every time the client gets into a car there is a breakout in sweat and fear looms every time a semi-truck is within the client’s range of vision.  That the client can no longer go swimming and swimming was his or her favorite pass-time, and that he or she used to go swimming at least three times per week for the length of two hours each time.
Then you begin doing the math in front of the jury.  You can do it on a big white board, or use an elmo, laptop with projection screens, etc.  Today’s courtrooms are filled with uber cool technology.  Anyway, the calculation would go something like this:  16 hours of the waking day in continuous pain at $10 per hour is $160 per day multiplied by 365 for one-year times 40 years remaining in the client’s life is $2,336,000.00 in pain and suffering for the continuous pain.  That is category one and can be justified due to the “continuous pain” testimony.
Then go to the next category out of the four.  Testimony was there was trouble sleeping about two times per week. So, let us make the assumption that testimony justifies claiming 4 hours per week of inconvenience due to having to toss and turn in bed without being able to sleep as a result of discomfort resultant from the injury. So, the math is 4 hours per week at $10 per hour is $40.00 per week times 52 weeks per year times 40 years equals an $83,200.00 award for inconvenience.
The third category would be loss of enjoyment of life.  Let us say testimony allows for an argument that the client is really upset about the swimming inability.  So, the calculation for this category would be, $10 per hour for a 2-hour period three times per week is $20 per day times 3 times per week times 52 weeks times 40 years is $124,800.00 for this category.
The fourth category being that of mental anguish. The client stated he or she has nightmares two times per week, but also stated fear when in an automobile.  We can then separate the two subcategories to claim an additional $83,200.00 due to the sleeping problems, and an additional amount for the fear when in an automobile.  So, let us say the client is in a car twice per day for a period of two hours, and sees a semitruck once per day.  You can tell the jury you will not increase the hourly amount so as to not be overreaching but that you think it would be reasonable to increase it because of the enhanced experience when the client sees a semitruck but that since the fear is always looming in the back of the client’s mind, you will keep the same rate of $10 per hour. 
Now, for this category the calculation would go as follows: $10 per hour times 2 hours per day times 365 days times 40 years is $292,000.00 in mental anguish related to being in a motor vehicle.  Then all the categories must be added up in order to reflect a complete award in non-economic damages. 
In this example the award would be in the amount of:
$2,336,000.00 + $83,200.00 + $124,800.00 + $83,200.00 + $292.000.00 = $2,919,200.00
You must then add cost of future medical care which was another $200,000.00 and any past medical costs and property damage, interests, and if you get a verdict and you had a Proposal for Settlement in place, you get to have your fees paid on top of the verdict.  So, let us assume past medical costs were $100,000.00, and property damage was $25,000.00.  Your verdict would then be well over the three-million-dollar figure.  This is one of the main methods for obtaining big verdicts.  I think the key when making use of the per diem argument, is to make sure not to confuse the jury.  If you confuse the jury by making the calculation process too complicated, the jury may just discard your efforts and decide you are being the typical greedy lawyer.
Defense attorneys may want to limit this type of argument and award by claiming that mental anguish and inconvenience are the same type of damage, or that the continuous pain award should be limited to a lower per hour dollar amount or simply claim that the notion of an hourly amount is not reasonable, and provide with an alternative. Defense attorney’s may also want to seek limitation of the employment of the per diem argument entirely.  The argument would be based on the notion that the per diem argument is not conclusively a right of the plaintiff’s counsel, but rests rather as a discretionary determination by the court. 
A defense attorney may want to employ an alternative to the hourly per diem argument from the standpoint of asking the jury to award a lump sum similar to how an employment severance is paid.  Basically, the argument would be based on the notion that everyone at some point is experiencing sufficient physical ailment and limitation that they seek to retire from working, and that the average retirement age is 65 years of age.  The lawyer may want to point out that oftentimes people retire a little early.  Then limit the award by the years between life expectancy and retirement age and provide for an average savings in a Floridian’s pension or 401k account in the profession of the plaintiff upon retirement as a suggested award.  So for example, if the plaintiff is 45 years of age, and is a plumber, find out what the average plumber has in his or her pension fund at retirement and ask the jury to award that much.
Another type of argument to limit an award in non-economic damages is to suggest all categories be consolidated into one concept known as pain and suffering.  Basically, arguing that pain and suffering includes notions of loss of enjoyment of life, mental anguish, inconvenience, etc.  That way limiting the calculation even if the jury were to award $10 per hour for every waking hour for the life expectancy of a claimant given the previous example. Then the defense attorney must thwart the plaintiff’s lawyer’s rebuttal and state that the plaintiff will ask on rebuttal that if the categories are to be consolidated, then all categories’ hourly rate should be added so that the rate is increased by the number of categories.  Then the defense lawyer must argue that doing so makes the hourly rate unreasonable and outside of what is fair.
Defense attorneys must determine whether there is enough evidence that would allow them to simply ignore the argument for non-economic damages and make a full assault on liability.  Simply stated, if a defense attorney effectively argues that the claimant was at fault at a sufficiently high rate, or that there should not be any liability on the defendant and succeeds, then the per diem argument loses its appeal, and may cause the jury to view the claimants lawyer as greedy or overreaching.  Because of these type of strategies, experienced lawyers state that damages drive the litigation.
There are many types of arguments.  I have seen lawyers overreach, and I have seen some that simply do not ask for a number for non-economic damages.  In sales the saying is that closing requires you to ask and learn to know when to ask or when not to ask.  Sometimes not asking simply allows the buyer to buy and asking can cause them not to buy.  The difference in a request for an award in non-economic damages is that the juror does not know what they are buying because there is no price attached.  My current viewpoint is that one must place a number in the mind of the jury that would allow the jury to effectively value the non-economic damages.  Basically, a jury will give without benefit to themselves on the basis of conscience.  Help them understand without helping yourself.  Remember, Justice is a god!

​This is your moment as advocate to provide the jury with your perspective of the case.  You must remember you are not to make argument on any matter or issue.  Remember it is a statement, not an argument you are delivering. 
Opening statements are a speech that provides for an overview of the case.  You get to tell the jury what they should expect to hear and receive in evidence.  Do not promise what you may not be able to deliver.  Do not promise evidence that has not been stipulated to, because something may go wrong and that evidence may not be seen by the jury at the end.  Do not promise to provide them with full transparency because you cannot control your objections or those of opposing counsel and given the side bar practice you will have failed the jury if you promise transparency. 
Tell them who you are, why you are there, what you expect the evidence will show and why, and explain the process of the trial.  Explain to them that the importance of their job largely rests on the fact that there are no do overs.  This is it forever and the stakes are high.  In this way you are impressing upon them the importance of their job.  When you empower others, they tend to do a better job. 
You are setting the tone for the trial.  Make sure you speak not only to your presentation of the case, but what you expect the presentation of the opposing party to focus on.  You want to thwart the other party from being able to have a moment that allows the jury to generate the sensation that you had concealed something, even if it is the ability to perceive a fact in more than one way.
Keep it short, and simple.  Do not get suckered into the limelight.  It is not about you aside from your need to become the mythical truth-sayer in the jury’s mind.

​This is my very favorite thing to do as a lawyer.  Although I have only had the opportunity to do it a handful of times, the process is extremely exciting and fun.  At one point I attended a seminar given by a very good jury selection consultant and decided to get glasses that would enhance my vision beyond 20/20.  The reason for my decision is that I realized there is always going to be an intangible attached to the process.  The intangible is that even after accumulating as much statistically significant information as possible, we cannot predict with absolute certainty the degree of prejudice and bias a person brings with them to venire on a particular issue or sub-issue.  The enhanced vision I thought would allow me to narrow down the uncertainty even to a higher degree by allowing me to interpret micromovement all people produce when they are confronted with something that is contrary to their comfort.
For example, one would technically not need to ask someone if they are uncomfortable with the notion of something in order to learn whether they are.  One could simply make statements about the topic and observe physical reactions.  This concept goes a little beyond the usual body language observations, but really is focused on micromovement.  It may be as simple as observing a person’s facial markings and then observing how these markings were formed given their reaction to statements.
In preparing for voire dire, you must understand what you need to prove at trial.  You need to know what the burden of proof is, what a jury can employ for the purpose of making its decision, and how to express it to your pool during the inquiry.  You will then need to make lists of questions that have some kind of an impetus to what you must prove at trial.  You may want to employ repeated questions or statements that in time embed commands into the jury pool.  Thereby causing the members of the sworn pool to already have a predisposition toward accepting your presentation.
Other styles may involve saying little and observing much.  There was a trial I assisted in for jury selection in which the plaintiff’s lawyer spent at least four hours asking questions and talking.   The defense attorney was actively observing the jury pool throughout the entire time the plaintiff’s lawyer was talking.  The defense lawyer was not taking any written notes, and he did not have anyone there to assist him.  The plaintiff’s lawyer felt very confident and good about the jury pool.  Now it was the defense lawyer’s turn to address the jury.  He introduced himself, and then asked one question to one particular member of the pool.  That individual that was addressed went into a monologue that caused the plaintiff’s lawyer to motion for a mistrial that was granted.  In this instance, the defense lawyer knew that if the case moved forward there was a high likelihood the plaintiff would obtain a very high verdict and eliminating that likelihood was of paramount importance. 
The purpose of voire dire is to eliminate members of the pool who have inherent or implicit bias and prejudice against your client, your client’s case, your client’s lawyer or firm.  You must find out who is of the opinion that is contrary to your client’s interests and obtain their testimony to their negative opinions on the record so that the Judge will be obligated to dismiss them given what is called a “for cause challenge.”  In order to do this effectively, you must read the case law on jury selection. 
If you read the case law, and keep good notes during the process, you will be able to argue “for cause challenges” in a manner that would allow you to eliminate all those with bias and prejudice against your client’s interests.  The next tool is that of employing “preemptive challenges.”  You will only get a limited number for those.  Three per party so you have to know how to use them.
Once questioning of the jury pool is completed, you will then need to argue the deselection of certain individuals in the pool.  Remember, the opposition wants to have individuals remain as members of the jury who have demonstrated bias and prejudice against your client’s interests.  Make sure that you have kept good notes throughout the process so that your Judge does not consider the opposing counselor’s argument over yours simply due to not having observed you taking notes.
Before anyone begins the questioning of the jury pool, make sure you have found out the positioning of each potential juror, and marked a space in your notebook that provides for a juror number and surname.  That way you have the order in which every pool member was seated and in that way can calculate who is likely to remain once you have gone through your “for cause challenges” but before you have employed your “preemptive challenges.” 
The process of deselection begins with the Judge addressing counselors in relation to their position with respect to the first juror in the number one seat.  You will then have to address any language you elicited that would qualify as “for cause challenge” language in order to have that person eliminated.  Then on to the second, third, and so forth. 
Once you have gone through the “for cause challenges,” the Judge will begin to ask about any positions with regard to “preemptive challenges.”  If you find yourself in a situation that allows you to claim opposing counsel has sought to preemptively deselect a potential juror you really like due to nothing but what appears to be a deselection on the basis for race, or any other protected class, you must object to the preemptive move and the judge is then to begin an inquiry to determine if opposing counsel has a legitimate or reason not based on a protected class matter for preemptively deselecting a member of the pool.  Pay close attention.  If the Judge does not conduct the inquiry correctly, you may have grounds to appeal if the dismissal of that person occurs.  If there are any back strikes granted, remember both sides deserve equal treatment.  A Judge can really alter the outcome and is just another human being with his or her own set of inherent bias and prejudice so make sure to place all your concerns on the record but do so politely.
Once the deselection process has been done, the Judge will let the jury pool know who stays for the trial and who gets to go home until the next period for jury duty begins.  Those pool members that remain are then placed in their respective chairs in the jury box and sworn in to serve on the jury.  If you have objections to any of the individuals in the jury box being sworn, make sure you renew your previous motions and objections.  Once the jury is sworn, opening statements are delivered.

​Mediation can be two things.  An awesome opportunity to resolve a case in good faith, or an opportunity to learn everything the opposing party thinks is wrong with your case.  When attending mediation, it is important to explain to your client exactly what you are doing, what the goal is and to caution them.  You must educate your client really well about mediation beforehand, otherwise you will not obtain a good result.  Client’s make or break their cases.
            Every mediation I have ever attended began with defendants stating they were there in good faith and wanted to resolve the case as best as possible for everyone.  That the outcome should be a win/win for both parties.  Unfortunately, the offers are not always reflective of a good faith negotiation where everyone would obtain a winning outcome. 
            Be mindful and listen carefully to the rhetoric employed and compare it to the actions.  If the actions and the rhetoric do not match, the action is reflective of the true nature the party has in mind. When the mediator tells your client they are going to work really hard for them, and then proceeds to talk them down and diminish their case value by attacking the client personally, then you know that mediator has his or her own biases against the types of cases and clients such as yours that day.  The same goes for your client. 
            If your client talks the big talk and wants to go to trial when not offered his or her ideal amount, but then squirms at the notion that if the verdict is not favorable they would be liable for attorney’s fees and costs given an opposing party Proposal for Settlement, you know their sense of principle is based on the likelihood of them obtaining a monetary award.  Most of the time, if both sides have all the information that will be presented at trial, and the attorneys negotiating are sophisticated enough, resolution will happen.  Unfortunately, sometimes the attorney’s negotiating are not knowledgeable enough to figure out how the other person thinks or digs his or her heels in on their position without any movement.
            Before you go to mediation, explain to your client that you will be going into a conference room where both parties will have an opportunity to explain to the other party what their position is given the facts and law.  Explain to the client that they must be cordial.  They should expect to hear things they are likely to consider insulting or aggravating at best.  The clients should understand that if they want to resolve their case at mediation, they cannot let the opposing party know or see their aggravation over the insulting statements made. 
            After the presentations, the mediator will take the defendant to a different room and begin to travel back and forth between the two rooms.  Each time the mediator enters or leaves one room, he or she is communicating with the other party as to how the positions are changing and why the value should go up or down given the circumstances being presented by the opposing party.  At some point you must start keeping track of numbers.  You must come to a minimum or maximum (depending on whether you are defending or prosecuting) number your client is willing to resolve for.
            Once the negotiation process has evolved to where all that is being communicated are numbers alongside insinuations of leverage moving into trial, you must keep track of your numbers, the numbers coming back from the opposing side and the proportional changes between corresponding numbers.  Without exception, after the first two exchanges between the parties, I am able to determine a range within which the final offers will be.  If the final ranges are acceptable, you can cut to the chase rather quickly.  Unfortunately, not everyone understands this process and if you cut to the chase too quickly so to speak, you may spook the other side. 
            Make sure that by the time you go to mediation you have all your cost in place so that you can provide your client with proper advice as you negotiate.
            If you find that the opposing side is simply going to mediation for the purpose of fulfilling a trial order requirement, do not give some elaborate presentation that delineates all your strengths and all their weaknesses.  You should be able to perceive the opposing sides interest in resolving the case when they enter the room initially and shake your hand.  If you are not able to determine their motive upon first impression the day of mediation, assume they are not there to resolve the case in good faith. 
            If you determine the opposing side is not there in good faith to resolve the case, make your presentation short and sweet.  Stick to the general notions within your case, almost appearing weak.  The outcome of that tactic is that the opposing party will provide you with an incredibly detailed presentation that allows you to understand their entire trial strategy, including all of the perceived weaknesses in your case. 
            The strategy behind this method in mediation requires you to take avid notes while pretending to be completely blindsided with the weaknesses in your case and the strengths in theirs.  This will cause opposing counsel to feel dominant and provide you with even more detail than before.  You may even be able to ask questions.  Act like a student and opposing counsel will not be able to subdue his ego, and in turn will tell you everything you don’t know.
            After going through the process of understanding the case from the perspective of the opposing party, go home, reflect, and correct all the weaknesses in your case prior to trial.  For you to do this, you must explain this possibility to your client prior to mediation.  Otherwise, your client will not understand what happened at mediation and easily lose confidence in your abilities.  This is so because you will appear to get beaten up when you employ this tactic. 
            Mediation can be a lot of fun.  Keep a list of all the mediators you work with and rank them from least favorite to best.  Stay away from mediators that cannot hide their own biases and approach your clients from an advocacy standpoint.  It does not matter how experienced they are.  If a mediator has a bias against soft tissue injury cases and operated as an insurance defense attorney most of his or her career, the likelihood is that person will not be able to approach your case in an unbiased manner.  Ultimately, it is human nature that governs all these subtleties.