Holly Howanitz, Managing Partner with Tyson & Mendes, joins Bill Kanasky, Jr., Ph.D. to discuss the current state of litigation in Florida after the tort reform bill H.B. 837 was passed in March 2023. Holly shares how both tort reform and the new rules of civil procedure that went into effect in January 2025 are impacting cases. The biggest change that Holly has seen is related to medical bills since whether the plaintiff had health insurance was not allowed to be discussed in court before tort reform. Bill and Holly also discuss how to handle anchoring, thoughts on medical billing experts, dealing with modified comparative negligence, eggshell plaintiffs, anchoring apportionment, and more.
Full Episode Transcript
[00:14] Bill Welcome to another edition of the Litigation Psychology Podcast brought to you by Courtroom Sciences. Dr. Bill Kanasky with me great friend of the podcast and good personal friend Holly Howanitz. Jacksonville, Florida, Tyson Mendes. Holly, how are you?
[00:27] Holly I’m doing great. Happy January.
[00:31] Bill I listen. This is why you live in Florida. Beautiful out.
[00:35] Holly 73 degrees.
[00:38] Bill Can’t—It’s so sunny. It’s so sunny. It’s just I’m blinded by the sun. So, everybody up north listening to this will be like “Uh, those—”
[00:47] Holly No shoveling for us.
[00:49] Bill No shoveling. And you don’t have to shovel humidity. So, we’re we’re in good shape. Holly, uh, thanks for coming on. Uh again, love having you on the podcast. We’re going to talk a little uh tort reform in Florida. Everybody always talks about tort reform, why we need it, and it’s great, great, great. But it does come with some headaches, it sounds like, uh as well. But before we do that, um I like a good rant. I like a good rant. I’m going to start with my rant and I’m going to let you do your rant. And I think sounds like based on our chat conversation earlier, they’re both AI related. Let me give you my, okay. So, this just happened this morning and I’m not allowed to talk about this case or the specifics. Alls I’m going to say is that the the plaintiffs in the case submitted motions to the court and the court discovered not only had they used AI in that process, it apparently hallucinated and started making up cases and I’m thinking wait a second like like it’s 2026 and this is still happening like how many em—how many embarrassing articles have you read about attorneys, right?
And then the courts, I remember the courts saying like, “Yeah, we’re going to like punish this, right?” You know, like it seems to be really that’s a really bad mistake as an attorney, right? And so this judge, again, I’m not I’m not saying [ __ ] about this case, location, anything. The judge essentially said, “Okay, I’ll give you a do over. We’ll bump everything out by a few months. Try again.” And like no punishment, no nothing. And I’m thinking, “What?” You get busted doing that and you just get a slap on the wrist and and then a do over.
[02:40] Holly It’s like, “Oh, so sorry. You were grossly negligent. Do you want to try try again?”
[02:44] Bill I mean, that’s that’s what the judge said. And I’m going, “Are you like really?” I I thought judges would stop I I figured a judge at this point in the game at this point in the game would like drop the hammer on that type of behavior. Okay. When all this came out and you remember the first article, it was like really bad and that attorney got in a lot of trouble and then on social media just fileed this attorney. You would you would think we we would have learned uh by now. Um so that’s the AI ram. Yeah, knock it off folks with submitting things to the court. Come on.
[03:22] Holly And if you don’t know better, you should get blasted for not knowing better.
[03:27] Bill So now if you want if you want to like use AI to like write a letter to complain to somebody or submit a complaint, knock yourself out. But you know to the court, not so sure that’s a great idea. But you know, apparently uh they dodged a bullet. So that is my AI rant. What what is your AI rant, Holly?
[03:48] Holly So, my AI rant has to do with emails and communications that are clearly written in AI. So, when I read an email from somebody, like if you email me, I can tell that there’s a way that you talk, right? So, I know that it can—
[04:02] Bill Well, yeah. It’s it’s filled with sarcasm and profanity typically.
[04:06] Holly Exactly. It’s very salty.
[04:07] Bill Yeah.
[04:08] Holly And and obviously I have a I have a tone and I have a personality that comes into my emails. And also when I’m emailing a client or an opposing counsel, you know, I generally like to know what their name is and get that right. I like to know if they’re male or female, and I like to make sure that my formatting and punctuation are correct. And it seems I get these emails that are either autogenerated um that you know, you can pop an email out like, “Hey, you’re late on your discovery.” And you can tell that it was written by AI. Or I get a lot of emails from vendors that are clearly not written by a person. But my point is is if you didn’t take the time to write it or at least correct it, do I owe you my time to give you a response?
[04:50] Bill I think that’s the epitome of laziness right there. An AI generated email. Seriously?
[04:56] Holly And I think over time we’re going to see I think AI is killing people’s ability to think when you overuse it. So one of my other pet peeves is when I’ll get an email from somebody reminding me of something that I clearly know. It’s like, “Oh no, we did this.” And it’s like, “Well, have I been living under a rock? I remember that we did this. It wasn’t my question. So, I think I think AI is a great tool, but it’s not a substitute for thinking and it’s not a substitute for your own brand of communication.
[05:24] Bill Yeah. Yeah. The way it’s being used, um, it’s made me slower. I know that. I have a, did I tell you about my plant? Chat GPT the plant? Okay. So, I live in Florida here. I one of my hobbies, right? because I can’t just walk around like a lunatic, this intense all day. Okay, so there’s two things I like to do that kind of put me at ease. Number one may shock you. I And my wife’s like, “You’re insane.” I’m like, “Yes, I am.” I love love washing dishes by hand. I love it. I love it. I do it every day. I don’t let anybody I just I I wish my my my goddamn kids would actually like just wash the dish off. I’ll wash it, but just like rinse it off, right? Like do you ever like like eat lasagna and like what your plate looks like after lasagna? Imagine just throwing that in the sink and not rinsed off and then in the morning what that’s gonna like I need a putty knife, a hammer and a chisel to get this stuff off. It’s disgusting, right? That’s my only issue with it. But I can’t use my phone, right? I I can do it’s it’s very puts my mind at ease. But AI, I have a plant GPT. It’s on chat GPT you can look up the different GPTs. I got one for plants. And so I walk around my back porch. I take a picture of the plant and I upload it. It tells me what type of plant it is. Uh it needs this or it needs that or and so if like my I have like a little nursery out back. It’s my solitude. It’s my serenity out there. So I use it to take care of plants. I bet no one no one knows any of this.
[06:58] Holly Well, that’s that’s a good use of AI. You know what else is a good use of AI? Like if you see a pair of shoes you like on somebody, you can take a picture of them and then you can use the AI to find where to buy it on the internet.
[07:11] Bill Yeah. Now I I’m assuming I would not do that with the stranger. I can I can see this go I can see this ending very very badly. Right. I can see this ending very very badly. So this creep was taking a picture of my shoes. Like what like what if I saw a pair of shoes on a woman? I’m like oh wow. I’d like to buy those for my wife. and I don’t ask for any consent and I start taking pictures, I’m I’m in trouble. I that’s just not gonna work.
[07:36] Holly You might end up on social media very weirdly for that.
[07:40] Bill Amongst other places. Okay, let’s get let’s get to the topic tort reform. So, uh a couple of years ago, there are some changes in Florida and if you can kind of because we did a podcast on this when it first happened. So, let’s kind of give us the historical kind of where we were, then what the court decided, and now we’re two years into some tort reform and kind of the pros and the cons of of of what’s happened.
[08:07] Holly Right. So, first I’ll start off that everything I predicted is turning out to be true. So, I would just like to have everybody acknowledge that that ever disagreed with me on the topic.
[08:18] Bill Don’t hold back, Holly. Tell everybody how you feel.
[08:21] Holly If you disagreed with me on this and you said I was being a Debbie Downer, you are wrong.
[08:26] Bill This is the I told you so podcast by Holly. Proceed counsel.
[08:29] Holly I love to lace things with a little bit of smug. So, but so in March of 2023, um that was the effective date of the tort reform and some of the key points as most of the listeners know were statute of limitations went from four years to two for general negligence. Um, medical bills was really one of the big hot topics and dealing with letters of protection. So, basically, as it relates to what insurance paid on medical bills, that’s what’s admissible as opposed to the bulk amount, although that’s really debatable and different state court judges are kind of all over the place on it. Now, we changed to modified comparative negligence, meaning if the jury came back and found it’s 50/50 on a case in terms of liability, the plaintiff would get nothing. That sounds great, but we’ll talk about there’s there’s some nuances to that. Um, there were some changes to to negligent security cases, which we’re seeing less often, but again, that the modified comparative negligence affects those cases. And then there were some changes that really related to property damage, like the attorney’s fees shifting provision, which isn’t relevant to most of your cases, and then some changes to the bad faith law. So, I think for purposes of the podcast today, um, we can talk about how these cases are starting to cycle through trial now and we’re seeing how the judges are applying the new law and then we’re seeing how jurors react to it. And I think there’s a way to use the new tort reform as a tool to get better outcomes, but then there’s also a lot of risk in really leaning into the some of the evidence that we can put in now and and you can you can actually make it worse if you use the new law incorrectly.
[10:11] Bill Interesting. So, how many cases have you tried in the new system?
[10:16] Holly Three. So, I had 10 trials last year, which was kind of a lot. Um but and then three of them were new and two of them went well and candidly one of them didn’t go so well. Uh we had some some discussions with the client and and internally and I think we actually leaned into the health insurance issue a little bit too hard and um fortunately we were able to adapt and the next time around we did it way better because there’s always learning. But, yeah I’ll tell you when it goes well and I’ll tell you when it doesn’t.
[10:48] Bill Now, before we get into this, was because when this happened a couple years ago, and I remember this, wasn’t there like a new litigation timeline set up? And I remember both plaintiff and defendants were like like they were trying to fast track cases like once a case was filed, there was a time limit and plaintiff and defense attorneys in Florida were like are you like this is impossible. Has that been an issue?
[11:13] Holly So, that’s a separate issue. So the tort reform itself was you know the changes in what’s admissible and then in January of 2025 we got the new rules of civil procedure. So the Florida Supreme but but combined together it does it does create some challenges. So the new rules of civil procedure basically every case gets a case management order. It gets on a track the general track which is going to be you know 90% of the cases that you see in the personal injury world. It’s it’s 18 months. So, the judges now expect you to get the case tried within 18 months of it being filed. And I had one in Colombia County that we just tried that it was an older case and after a case is three years old, the judge has to start reporting it on some watch list. So, both us and the plaintiff’s attorney kind of didn’t want to try a case in December, but the judge was like, “Tough, this one’s on my reported list. You’re doing it.” So, um, so yeah, that that the compressed deadlines coupled with some of the new legal issues, um, definitely makes it where you got to hustle.
[12:17] Bill Wow. Um, seems like that kind of seems like a nightmare on both for both sides here, but yeah, let’s let’s hop into the tort reform. You’ve had uh a couple cases doing things uh differently. uh share with us what you’ve learned, the pros, the cons, how you’ve had to how you had to change things to adapt.
[12:39] Holly So, the the medical bills has been the thing that’s impacted my cases the most. I have had some I’ve had the modified comparative issue come up as well. But with the medical bills, as you know, in Florida, one of the things that we’ve talked about, you know, for years is letters of protection, inflated medical bills, how there was the strategy to sort of build up the medical bills so that the overall case could be worth more. And so I think the intent of tort reform was, well, we’re not going to let these wild medical bills, you know, drive the bus on the case. So, it gives you the ability if the person had insurance and the bills were paid for the past medical bills, what’s admissible is actually what was paid. If they didn’t have insurance, there’s the opportunity for they can introduce the whole bills um under the letter of protection, but then the defense can present 120% of what Medicare would have paid or 100% 170% of what Medicaid would have paid. Now again, I could send you 75 orders from state court judges writing about how they interpret this and and so you never really know until you have the specific case what the judge is going to rule on what’s admissible and whose burden it is to enter it. But so the bottom line is also is that the fact that a plaintiff has health insurance can now be talked about at trial, which it never could before.
[14:01] Bill Yeah and jurors listen and all these focus groups and mock juries I I mean it’s one of the first things that comes up is well wait a second don’t they have health insurance right and uh yeah jurors are always very curious about that and then in you know in most states where that cannot come up uh you see a a big disappointment uh look a disappointed look on the juror’s face when you’re like oh we can’t really talk about that.
[14:23] Holly Right and so it’s one thing you would think the jurors would want to hear about it and the fact that the plaintiff had health insurance is a big deal. And again, if presented correctly, I think it’s a good tool in trial. But one thing that I would caution on is leaning in too deeply to the fact that they have health insurance. So, let’s say you have an admitted liability trucking case. Like, you did it. It’s just a matter of causation and damages. If you know what I worry about and what you have to think about is if your argument is, yeah, we injured them, but they have health insurance, so like this case.
[15:03] Bill Is that your opening statement? Yeah, we crashed, but they have United Healthcare. Come on.
[15:09] Holly Right. Like, just let them let them rely on their health insurance and and don’t bother me with a verdict. So, that’s problematic for a number of reasons. one, you know, members of the jury and members in of society in general are inherently selfish. Would you agree? Like most people are selfish.
[15:30] Bill There’s some—that’s one way to describe it. Yeah.
[15:33] Holly Or everybody wonders how will this affect me? So, I think there’s there’s a risk depending on how this health insurance is presented that jurors are going to be like, “Well, my my health insurance rates are going to go up if this keeps happening. So, I need to make sure that I give a verdict where these people can pay for this outside of their health insurance so that this doesn’t affect me.” So, that’s a risk when you you tap into the selfish part of the brain. Another risk is that it looks like the defendant is running from responsibility. And you know, that’s one of the things that any good plaintiff’s attorney, you know, if if not tethered with a motion in limine and and you know, if not controlled appropriately, especially in like UM cases, it’s like and they’re not even taking responsibility for this at all. That’s kind of the message that they want to send. And obviously, we want to do the opposite and say, look, we own the damages that we caused. Like, we we get it. You know, we want to be held accountable for what’s reasonable and what we caused. But if so if we’re saying eh health insurance will cover it, it kind of looks like we’re trying to get out of paying for something that we caused.
[16:45] Bill Bad optics. Bad optics.
[16:47] Holly Yeah. So I think and and you probably this will probably something that you consult with people going forward like how do you present the health insurance issue without overstepping like you want the you want to kind of lead the jury to water and let them like drink but you don’t want to shove it too hard. And I think it depends on the how you have to sell it too. It depends on which county you’re in—
[17:09] Bill Which is which is why we’re we’re doing so much focus grouping now on these issues because you may have to play it different depending on what venue you’re in, right? Um you know, and look look at Florida’s like everybody everybody that does not live here um doesn’t really understand. Florida’s like three different countries, right? South Florida, Central Florida, and North Florida. completely different and kind of where your case is at. You very very different, you know, groups of people. And so, you know, we suggest on issues like that is, you know, let’s go ahead and test this to see what messages work, what themes work on that issue, where do jurors feel maybe, yeah, you’re pushing that a little bit too hard versus, you know, what’s the balance of where you can get it out there, right? Like you plant the seed, you water it a little bit and back off, right? Where is that line and where is that line and that line’s going to change?
[18:04] Holly Yeah. The other issue that I’ve been seeing frequently in cases where you know let’s say the plaintiff has you know great health insurance and the past meds are going to be minuscule and this is something that we had sort of seen before after the dial case in 2021 with Medicare. Where you’re probably familiar with you know if the person has Medicare the boardable meds have always just been what what was paid. So, we’re kind of seeing the same trend with private insurance that we saw with Medicare is that if it’s not worth it, they’ll just drop the past meds. So, that presents a challenge. You know, for years and years in auto cases, you’ve got the threshold issue of permanent injury, right? And so, if they don’t get a finding of a permanent injury, then they can’t be awarded past or future pain and suffering. So, that’s a big deal. You know, you always want to go for no permanency. And it it creates some limitations on how you can present your case because you can’t suggest to give them like a little bit of past pain and suffering to look reasonable. Um you can talk about pain and suffering, but you can’t put a number on your verdict form at the end if you’re going for no permanency um in your suggestion. So when they take away the past meds, it presents kind of a challenge in terms of anchoring because a lot of, you know, again, like especially if it’s an admitted liability type case or even if we’re going for a defense verdict, but we’re giving them an alternative, we try to anchor with something that seems reasonable like, you know, give her six months of medical treatment for this that and and then you calculate it and you put it in your closing. So, if they’ve waived the past meds, then you have to be a little bit more creative with how you anchor the case because they’re not claiming it.
[19:45] Bill That’s a that’s a really uh I think important issue. Can you talk about um the use of anchoring and how and we both know this this is important for the audience in any case, not just uh in Florida, is it’s not just the the number, right? You have to have a rationale behind it. Not just, hey, you know, 700 grand just sounds like a good number, right? You got it’s got to be some sort, it doesn’t have to be a per diem or formula that’s rigorous, but just something kind of logical that that makes some sort of sense, right?
[20:19] Holly Yeah. You have to tie it to a tangible item. So, you know, in those cases where you have the threshold of permanent injury, it’s often past meds that we try, you know, let’s pay for her treatment up to this date and, you know, and we come up with a reason why the cut off date makes sense. Um, we we do it that way. In like a case where there isn’t the threshold issue, like if it’s a premises case, often with the anchor, I would tie it to something we could buy for them, you know? So, it’s like, well, they said they can’t, you know, do this anymore. You can’t go to Disney World anymore. or let’s figure out how to pay for them to have that and then they can get, you know, they can get some mobility assistance at Disney World.
[20:58] Bill I I wouldn’t go to Disney World if you if you sent me for free, by the way.
[21:01] Holly Yeah, you wouldn’t go to Disney World. I have paid to run like marathons at Disney World. I don’t know why I’ve done that.
[21:08] Bill I have no idea why you’ve done that.
[21:07] Holly About my judgment. I I don’t know. But yeah, I but I’m one of I would, you know, I’m I’m a Disney fan. Um, but in in any event, you all, you know, when you take the depositions and the discovery process, you find out, well, what is it that, you know, what were their hobbies? What did they like to do? What are they saying that the injury took away from them? And then when you do the anchor, you want to tie it back to where you’re kind of buying them something meaningful.
[21:34] Bill Yeah. It shows that you put some thought into it and that’s that’s tangible items.
[21:37] Holly Yeah. And then on the other side, you want to talk about how the plaintiff just made their number up. And that’s not, you know, I usually use the jury se the jury instructions to show that there’s no jury instruction for what they’re saying and, you know, they’re they’re just making it up. But so the waiver of past meds, not only does it create an issue with anchoring, it also gives them the opportunity to look like they’re being reasonable. And I’m sure you’ve seen this in cases where we see it sometimes where, you know, there was originally a neck and back claim, but then we conclusively disproved one of them and so they do the “Well, we’re not even claiming the neck.” Like, they’re giving a discount. Um, and and it’s like, “No, you’re not giving a discount. You just don’t have any evidence.” So, so they do. So, with the past meds, I’ve seen them trying to do that, too. Like, “We’re not even claiming our past medicals.” And it’s like, well, you’re not claiming them because you didn’t pay them. Like, that’s not a real damage. So, you know, that’s something that you have to kind of be on the lookout for, whether to deal with it through a motion in limine, whether to just come out with it in jury selection. Um, you know, and and kind of deal with it throughout the case. So, that’s an additional challenge that we see with the medicals. Um, you know what I found in the ones that were that went well is that, you know, you had to find the fine line of like how much of the insurance stuff is it good to focus on. I think it’s better to have a billing and coding type expert to present it as evidence instead of argument. So, you’re basically putting in like these are the bills and you know, I the attorney making the argument didn’t say it. This expert said it. And then the other thing is is we don’t want to forget what worked before, right? So, you know, just because they, you know, we can talk about what Medicare would have paid doesn’t mean that the LOP doctor isn’t still the same guy he was before. Um, so it’s kind of like you don’t want to get all confused by tort reform and abandon the old arguments that worked.
[23:41] Bill Yeah. Let’s talk let’s that’s that’s another good point which is somewhat new I think um medical billing experts um a um where do you find one and b god it just it just it just sounds it just sounds painful.
[24:00] Holly Yeah. Well it’s I I probably I know more about CPT codes than I ever like when you know when I’m like five thinking about wanting to be a lawyer. I’m not like, “and I’m going to learn all about CPT codes and know what’s reasonable for medical bills.” So, um you can find them. I mean, there’s a lot of companies that do medical billing and coding. Um and you there’s like Elevate’s one of them. There’s there’s people all over the country that talk about medical billing and coding and testify. So, they’re actually easy. I mean, I bet if you Googled it, a bunch of them would come up. So, there’s that actually is an industry. And it’s something though you have to pick one that again a jury’s not just going to go to sleep because basically what they’re doing is they’re presenting you know the med they look at the medical records they look at the medical bills and what was charged and then they have databases that show basically what the usual and customary charges are for different services all over the countries and they match it up. So they’re like, “This person got injections. This doctor charged, you know, $1,500, but the usual and customary rate for that is only $700.” So that’s kind of how you present that.
[25:09] Bill Interesting. Now, does the plaintiff hire an expert doing the same thing to kind of to to justify the billing? Because that this just seems like it it would be so black and white and how would it how would there be any gray area when it came to coding a billing? But maybe there is.
[25:26] Holly There actually kind of it. So you see this a lot with life care planners too, right? And there’s like I mean I have I have this book I can show it to you. So this is so there’s like books like this, right? So this is called the physician’s fee reference. This is the 2023, but I have them for 2024, 2025. And so these like have CPT codes for every medical service you can imagine. And it’ll say what’s the 50th percentile nationally? What’s the 70 to 90. So a lot of times life care planners on the plaintiff’s end they always want to use like 80 to 90th percentile of what it costs. And then of course the defense ones will be like no you should really use you know 50 or some of them even use 50 to 75. So you can skew the numbers just by that and then different doctors can choose to charge kind of whatever they want. Now, what they get paid what they get paid is not necessarily what they charge. And most of them have contracts with insurance providers and things like that, but there’s really no regulation on what they can charge, but there’s databases that that kind of collect what they usually get paid for things.
[26:36] Bill Interesting.
[26:37] Holly So, yeah, it should be, you would think it should be cut and dry, but you know, it’s not
[26:42] Bill Nice. So, what else do we got on tort reform that you can educate us?
[26:48] Holly So, I think I’ve exhausted the bills. The other thing that I’m seeing is impacting cases is modified comparative negligence.
[26:56] Bill Let’s talk about that. Yeah.
[26:58] Holly Yeah. So, I practice I’ve been practicing in Georgia for 20 years, too. So, I do Florida and Georgia um and occasionally Tennessee, but I try not to because it’s too far. We have we have a Tennessee office that can handle that. Yeah. But Georgia has had modified comparative negligence since I’ve been a lawyer, so I’m kind of used to it. But Florida has just adopted that. And what the difference is we used to have basically you could tag a plaintiff with 99% fault for an accident and then they would recover whatever 1% was of the total verdict. So we had pure comparative negligence where it was just literally you recovered the percentage that the defendant was at fault of the gross verdict. The thought process with modified comparative negligence, which the way it is now, is if the jury finds the plaintiff to be 50% responsible or more, the plaintiff gets nothing. So that sounds good for the defense, right?
[27:52] Bill Yeah.
[27:53] Holly It’s like, well, if I can just prove that they’re 50% responsible, they don’t get anything. The problem is is that the jury is told about that.
[28:00] Bill That’s the problem. That’s the problem.
[28:05] Holly Right. And and as you know, most most jurors go in to trial like well, first they don’t want to get selected, but if they get selected, like nobody wants to get selected. Um we’re kind of like as a side issue, my chapter of Aboda is actually working on some juror appreciation and some programs to actually make people not want to get out of jury duty as much because it is a civic duty and I think most people after they serve find it rewarding. But once they get chosen, you know, one of whether they want to be on the jury or not, I think that they inherently want to do the right thing. And I think most jurors, as you would probably agree, I think they come up with a number a lot of times and then they back their way into it.
[28:54] Bill They reverse and that’s what that’s what they do.
[28:57] Holly That’s what they do. So it almost like so the things like we’ve been talking about before like the medical bills and what’s presented and then a lot of times I think at the end of the day it’s like they’re like what do we think is reasonable for this? Let’s back our way into it.
[29:08] Bill Yeah. that which, which really sucks because and we see it in mock trials and focus groups where it’s like well I don’t think the defendant did anything wrong but I want this person to get money so I’m going to give the defendant 51% and then I’m going to make sure that it’s like which is blatantly not how to do it and not in the jury instructions but they do it.
[29:36] Holly Correct and so you got to think and and we try to hammer that in closing and you know throughout the case…
[29:41] Bill Voir Dire. You have to bring that up in voir dire.
[29:45] Holly If you’re making a contract with me to follow the law and to follow the instructions but at the end of the day you know we people are going to do what they’re going to do a lot of times so when we have the modified comparative and it’s even on the verdict form so I’ve had two cases with modified comparative and in both of them fortunately the verdicts were still kind of small because we did a good job on damage our damage argument But in both of them, the defendant got found 60% at fault. So what does that tell you?
And so a jury may think like the evidence shows that the defendant was only 30% at fault, but then they’re told, “Yep. Well, if you don’t find them 50% at fault, you know, then the plaintiff gets nothing and they want to give the plaintiff something.” So I think it makes it harder to tag the plaintiff with a high percentage.
[30:34] Bill It’s really, yeah, it’s really really hard. And so, um, yeah, attacking that in jury selection is really important because imagine like if if you if you didn’t talk about this until the closing and everybody’s already like that’s that’s a pretty rough uh position to be in.
[30:53] Holly Yeah. You have to prepare them for it and obviously try to pick the right jurors. You have to like re-hit it in opening. And you know, again, you you sort of like lay the the guilt on them a little bit and you were picked because you made an agreement to follow the law, you know.
[31:09] Bill Yeah. And you may not like it.
[31:11] Holly Yeah. But then in those, you know, in in my cases again, I think what they did because the numbers were low. So I think they took the percentage that they really thought, they did a little bit of math and then they lowered the number and they came out with the net verdict that they thought they wanted to give.
[31:30] Bill We were just talking about this the other day. And so the pro-defense jurors will be like, “Okay, here’s what we’re going to do. I’ll give you your liability so you can give something, but we’re only giving this” like that’s the negotiation, right? That that tends to to happen. And it’s um it’s natural. It’s human and that’s what jurors do.
[31:55] Holly Yeah. So, you know, kind of the at the end of the day for the tort reform, my, you know, my thought when it first happened when, you know, the insurance carriers were going nuts. They’re like, “It’s going to be great.” You know, you see them evaluating pre-suit claims and are like, “We’re not paying you anything because of tort reform.” But to me, at the end of the day, once, you know, once you get to trial, I don’t know that it’s going to make a huge amount of difference in terms of the net verdicts from because from what I’ve seen, like like the 10 trials that I had last year, the pre-tort reform law and the post-tort reform law, I ended up with about the same results.
[32:33] Bill Yeah.
[32:34] Holly And the results kind of made sense for the case regardless of which law we were traveling under.
[32:42] Bill Wow. So, where’s it all going? We’ve been, we got two years of it. What do you, where’s, what’s the future hold?
[32:47] Holly Well, you know, there’s always already some talk, I think, about some changing things back. Um and and there’s always—
[32:54] Bill Buyer’s remorse?
[32:55] Holly Yeah. There’s there’s always a—No, I mean, the plaintiff’s attorneys are still going to try to get it changed back. So, and you know, the pendulum always sort of swings both ways, but I think you know the bottom line for attorney, defense attorneys and people like you is it’s like we take, you know, what the law is and then you have to analyze what is a jury going to do with this? And I think it’s important to not get overly optimistic, but to look at things very clinically, uh, and say, well, you know, and I I kind of I kind of golden rule myself on cases. um usually with injuries like I’ll play this game I’m like you know do I think I would take this injury for that amount of money and most of the time the answer is no because I just don’t want to be injured but uh you know like to me it’s like I would rather not be injured and and not get money but in any when I look at it I’m I I try to think what’s reasonable and kind of put myself in the jury’s position and then I form my arguments based on that and I think really to be successful under the new law, you you don’t want to lose your kind of street cred with the jury. So, I always try to look like I’m the most reasonable person in the room no matter what. You know, like I’m not I’m not trying to get out of this. Yes, we caused this accident. Yes, this plaintiff is entitled to some compensation. You know, my client needs to be held accountable for it. And and so you don’t want to look like because the more you look like you’re using loopholes and things like that, then the jury’s not going to like you and they’re going to be they’re going to be more interested in, you know, giving the plaintiff what they ask for.
[34:36] Bill Yeah. Yeah. Well, this is uh really great stuff. Very interesting. It’s amazing. You know what’s frustrating in my job? You know, you work in technically work in three states. You know, we work in like 46 or so. It’s and the rules are different everywhere. It’s really it’s a it’s it’s it’s handling all these different types of cases uh geographically with different rules, different judges, federal versus state rules. It’s uh it’s kind of like constant it’s a constant it’s just a it’s a boy it’s a grind. Um but uh the way each state does things uh differently and how you have to prepare for that is uh it’s a little bit of a headache but I guess I guess it’s just part of this job.
[35:19] Holly Well, I I would think that the tort reform and and maybe the first few trials that have come through might motivate the clients to do more focus groups because, you know, you like you kind of always especially on the bigger cases because I think that we can get lost in the arguments that we can make without really knowing how they’re going to land, especially when it’s new. And I do think I think that there were some people on the defense side that definitely were overly optimistic with how the changes in the law with regard to medical bills would land.
[35:56] Bill Yeah. I guess you never know till it happens. Right. Yeah. Interesting. Well, let let me let me uh let’s let’s wrap this up. Let me let me throw a couple of uh other questions out there that we did not plan for. So, there is some curveballs. Um I’ve had several just want to get your opinion on things. um how do you handle cases? Uh we I’ve worked on a bunch of cases in my career, but particularly recently where um the plaintiff has a um I guess you could describe them as more of an eggshell plaintiff. Um a lot of health pre-existing health problems, right? And then there’s an accident and a claim. Um kind of what’s your philosophy of of of dealing with that? Because that that that’s a tricky issue. And again, that’s why we doing so many focus groups to say, okay, like what’s the balance here of of us appearing as though we’re these insensitive pricks that are just blaming the plaintiff for smoking for 40 years or being obese or being diabetic or having previous back, hip, and neck problems versus but but that’s really the reality of what happened. What’s your philosophy on those cases? Because we see that a lot and boy it’s a fine line because you you obviously can’t ignore it. Right?. Um and then you know you’re going to be cross-examining a plaintiff expert which I think is one of the best ways for that to come out to get to get them to talk about it. Right. Uh tell us about how you’ve been handling those cases.
[37:27] Holly So first of all again you got to golden rule yourself on that and you have to think about how things are going to land with the jury. And I I generally bench myself from questioning anybody about their history of obesity because it’s just not good optics, you know, because I I weigh like 10 pounds. So, it’s just I you know, you got to figure out who first who’s going to do the cross-examination on these tough issues. Um, as it relates to eggshell, the plaintiff in Florida, you know, first of all, what are your jury instructions, right? Question for the venue. In Florida, as you know, we have kind of the the difficult jury instruction on aggravation where it says, you know, you should try to apportion which part of the damages were pre-existing, but if you can’t, you should award the whole amount. So, plaintiffs view that as the get out of jail free instruction. I actually use it to my like I I try to use it as a sword instead of just running from it. So in jury selection, you want to deal with it and you again you you that’s one of the instructions that we would read during jury selection and sort of make a contract with them to follow the law because you’re supposed to try to apportion it. That’s their duty as the jury. And then what I do when I do my anchor number is I sometimes will suggest a percentage of apportionment based on you know different things. So, you know, if you already had the diagnosis of a herniated disc and you know, the structural damage that was operated on was pre-existing. So, therefore, that is not part of the apportionment because the doctor didn’t fix something caused by the accident. They fixed something that was pre-existing. So, I actually use that jury instruction and I will suggest an apportionment. And then sometimes I’ll tie it into the past meds like you’re supposed to apportion what we caused. This is what we caused and this is you following the law. So, I kind of do it that way.
[39:15] Bill That’s a great point. By the way, I’m not sure we’ve by the way, we’re approaching um we’re at five years approaching episode number 300 of this podcast. We are rocking and rolling. I’m not sure uh and I’ve talked about this uh with clients. I’m not sure this has ever come up on the podcast. So, let’s expand on this while we while we wrap this up. Every everybody when you think of the word anchoring or counter anchoring, you’re thinking damages figures. You can do that with apportionment. It doesn’t have to be it just doesn’t have to be the damages figures. And there’s several cases where again defense attorneys look at me like I I have three heads where I’m like you can counter anchor with the apportionment of fault, right? Particularly you kind of know you’re going to get hit, right? And say which again it sounds weird but to say listen we’re gonna you know hey you know we don’t think we played a huge role here. Yeah, we were involved. It’s we, hey, we trust you to come up with the uh the appropriate apportionment of fault. You know, we really feel, you know, it’s, you know, 10% or 20%, right? Um I don’t think people do that uh enough. Talk to us about your uh experience that because anchoring definitely goes beyond the actual damage numbers.
[40:32] Holly Yeah, I had a debate with my client on a premises case that I tried where I was like because you know sometimes you get in on these like retail cases and your witnesses are just horrible and there’s no fix even like I could hire you all day long to try to fix them and you could make them better but there’s still you know there’s still limits. Yeah. So I one that the witnesses were just bad and it was there was no and and I wasn’t going to call them but I knew the plaintiff was going to call them in their case. So I told the client I was like there is a less than 10% chance we don’t get tagged with something. So when I open and close I want to anchor with a percentage of fault and the plaintiff’s not going to accept any responsibility for it. So if I’m saying look you know give us give us 25% or give us 30% then it looks reasonable.
[41:19] Bill Yes.
[41:20] Holly So yeah, we anchor with numbers all the time, but if it’s a if it’s a shared liability type of case, I think you have to give the jury a roadmap with something to do. And when you do it, you kind of know like if I tell them to give 20%, they’re probably going to give a little bit more than that. But at least I’ve pulled them back and it it definitely lowers your risk of getting tagged with 100%.
[41:41] Bill Yeah. And again, back to the why you want to focus group this stuff is to figure out where that line is because, you know, we do a lot of focus group where we’re testing anchors and counter anchors against each other, right? And they’re very good because then you figure out, oh wow, my counter anchor is not going to work. Everybody got mad at me and boy they gave more money to the plaintiff because they thought I was lowballing and then they retest and they adjust it and you you can figure out where your counter anchor is scientifically and that’s the best way to do it as opposed to guessing. The same exact thing can be done with apportionment of fault and you know you do a focus group and you’re like okay let’s try 10%. Right? And then the jurors come back at 75. You’re like, “Oh boy.” Right? And they and they tell you like, “When you said 10%, we were like, “Are you out of your like you’re crazy?” Blah blah blah blah blah. And then you retest and you crank that up to 30%. And they’re like, “Yeah, okay. Well, okay.” And and then they like, “Okay, let me think about that.” Right? So you have to find that that kind of window of where people don’t go, “Are you crazy?” versus, “hm, let let me consider that.” And I think that’s going to change from from case to case and other I think the most dangerous thing and I don’t think plaintiff attorneys do this because I think they they do a lot of focus groups. I think where defense attorneys make a lot of mistakes is they go with their intuition, their gut instincts of I think I am going to throw 20% out there and they don’t test it. and you’re just kind of the first time you’re testing it is what if you’re testing anything for the first time in front of the real jury. I think that’s extraordinarily risky,.
[43:24] Holly Right. And even with the percentage anchors of fault, you have to have a reason for it, right? I did one where my suggestion was give us 25% and I said the reason why to give us 25% and then I had three different reasons why the plaintiff had 75% and I broke it down to 25% each. It’s like 25% for being on your phone and not looking where you’re going. So then you give like a reason. I like to do like a nice little pie chart sometimes with it.
[43:50] Bill I think that’s beautiful. And again, you could again simplicity. How many times on this podcast have I tell simplicity simplicity simplicity like you could simply like a really great tactic is to say ladies and gentlemen, right? Like in your closing or in your opening, it doesn’t matter. Like four things were done wrong here. Four things. We did one thing wrong. They did three things wrong. Right. It’s that It’s that simple. And that’s why the number is 25%. I mean, and then you shut up. You shut up and you sit down. The problem is we just simplicity does not sit well with attorneys. They like to complicate everything, make some extravagant elaborate formula when you can literally say four bad things happen and yeah, we were definitely we’re definitely one of them. We own it. But the other 75% that’s not on that’s not on us.
[44:45] Holly Yeah. It gives the jury a simple road map to do what you’ve asked them to do, which is what the good plaintiff’s attorneys have been doing that for years.
[44:53] Bill Exactly. Exactly. Well, Holly, thank you so much for coming on. I’m going to go hop on a witness training on Zoom on my uh on my Friday afternoon. But, um, thank you. Thank you. So, if people have questions for you about anything you talked about with the tort reform, what’s what’s the what’s your contact information or the best way to get a hold of you?
[45:11] Holly They can email me. It’s hhowanitz. Using my last it’s h o w a n i t z@tysonmendes.com. Um, if you didn’t get that, you just type my name into Google and there’s like 47 ways to get in touch with me.
[45:26] Bill Your LinkedIn your LinkedIn page is very active. Your LinkedIn page is very active. I’m not going to copy your sticky note style, but I have them. I have them right.
[45:35] Holly I see people doing the sticky, by the way.
[45:39] Bill You didn’t trademark that or copyright like that? You should have a patent on that process. They copy it?
[45:46] Holly I see people do the sticky. I’m glad that you recognize that I I was the first one to do the sticky.
[45:51] Bill You were absolutely the first one. But you know what? You should be flattered.
[45:55] Holly I’ll take I’ll take it as a compliment.
[45:58] Bill Yeah, absolutely. Oh, and final update. I have officially and I’ve sub okay I I have abandoned because of just pain and agony. I have officially abandoned the Bulgarian split squat and I have transitioned. Listen, hey, I’m 52. As you age, you got to you can’t be like doing crazy stuff anymore. You’re just going to speaking of injuries, right? You’re going to get yourself hurt. I have transitioned to the um alternating single leg lunges holding dumbbells. They still burn.
[46:30] Holly Hugh Jackman did a thing on how he like works out for his age and he doesn’t get hurt. But yeah, the split squat is that can be uh emotionally challenging as well.
[46:41] Bill It can it can it’s just it’s nothing like the Bulgar the Bulgarian I is just like punishment. It’s just it’s pure punishment. Zero pleasure. and uh I went through and say, you know, I have to do something I enjoy a little bit more and still get the the benefits. So, yeah, getting a good benefit uh with that.
[47:01] Holly My personal Bulgarian split squat is the um 800 meter repeats, and I still do those. So, I’m not as fast as I used to be, but you know, I’m faster than most people my age.
[47:14] Bill You’re faster than most people. I I I know that. Well, thank you for so much for uh coming on the podcast. Again, to our listeners, thank you very much for listening to this edition of the Litigation Psychology Podcast brought to you by Courtroom Sciences, Dr. Bill Kanasky. See you next time.
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