It’s the Stories That Linger by Kimberly O. Weingart, OTLA Guardian The task at hand in this article is to discuss my most memorable case. Having pondered this for too many months now, what initially seemed like a simple endeavor has become obviously less so. My husband, Neal, and I have a good friend, another lawyer, who frequently says, “whenever I tell a good story, Neal’s response is, ‘that reminds me of two stories…’” I think we (especially us trial lawyers) are all a little the same this way. When we think about something interesting or memorable, it tickles a fancy to replicate the exercise. Accordingly, I’ve been down the rabbit hole of memories about cases new and old, to determine which is the most memorable and, spoiler alert, I have concluded there is no good answer because it’s an impossible question. Can I really pick between the memories that float to the top of the morass of a professional lifetime of representing injured people? I say a “lifetime” facetiously, because I’ve really only been doing this kind of work for about thirteen years, but I very much hope to be privileged enough to continue to do what I’m doing now for the remainder of my working years. I see so many of our colleagues (including my father, Randy Pickett, who I’m so lucky to work with) going into their nth decade of personal injury practice and it doesn’t appear the joy or complexity surrounding this wonderful work ever fades. Much like the prospect of picking a favorite child, designating a most-memorable case feels like a karmically dangerous branch to crawl out onto. Just for the sake of argument, there is something to be said for both the primacy effect and the recency effect as cognitive biases relevant to this discussion. As I presently sit, barely recovered from a most recent trial and with a motion for new trial freshly filed by defendants, the thing that resonates is this vivid understanding of who our client is and the story of what makes her who she is, thereby specifically impacted by the injury she suffered. More than the inevitably nuanced and disparate takes on the finer points of products liability law and the implausible cry of “remittitur,” what echoes in my mind of that trial experience are the images created in the courtroom that added color to the canvas of the story the jury needed to hear. I’m not sure I’ll ever forget the moment when co-counsel Matt Kaplan asked one of our damages witnesses what made our client unique. The witness, a long-time friend and sometimes co-worker, hesitated and swiveled in his seat, turning away from the jury — I feared he might not know what to say or didn’t have an answer, but quickly realized from his body language that he was overcome because there was simply too much to say — he turned back to the jury and his voice cracked, on the edge of tears, and said “what makes her unique? I can go on and on with that…” The words on paper really don’t do the moment justice. It was a nothing answer but an everything answer all at the same time and everybody in the room felt the power of it because the puzzle pieces of our client’s story were coming together. In thinking about how special that client is and how wonderfully our trial team worked together on that case, I then feel a reactive and distinct pang of guilt for overlooking our penultimate trial experience with a client who had suffered a workplace injury and brought third party claims against indirect employers under the Employers’ Liability Law and Oregon Safe Employment Act, as well as in negligence. This client is also amazing — inimitably so. He is honest, hardworking, straightforward, charming and remarkable in so many ways, and still, the defendants couldn’t see what was so clear to those of us working with him over the duration of a protracted litigation battle. Others chose to discount his truth and belittle his injuries, to the point that I considered I might need to find another line of work if the case didn’t break in our favor while waiting on the deliberating jury over a long KIMBERLY O. WEINGART practices exclusively in plaintiff’s personal injury. She specializes in third-party workplace injury claims, products liability cases, dram shop claims, and pedestrian and bicyclist injuries. An OTLA Guardian at the Sustaining level, Weingart is a partner in the firm of Pickett Dummigan Weingart LLP, located at The Centennial Block, 210 SW Morrison St., 4th Floor, Portland, OR 97204. She can be reached at [email protected] and 503-223-7770. 42 Trial Lawyer | Fall 2024
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