Attorney Mike Bruno looks back on Josh’s case and the summer of 2010:
The summer of 2010 was a long one and I had been looking forward to my August vacation in northern Michigan. But, when Josh’s injury occurred, I knew I was going to have to run the show at the office because Chuck would be out for a while with his family. Josh’s fall from the diving board occurred on a Monday and I was scheduled to leave for vacation on that Friday. I cancelled the vacation and knew that I was in for an even longer summer.
Throughout Josh’s case there was definitely a different dynamic. In our work, things usually occur on the outside and we gather the facts via a telephone call with the client or in a meeting. Then, the client will go home and we work on something else for a while and come back to the client’s file. But Josh’s case was always open and the client was always at the office. I didn’t have the freedom to move on to other things and just spend a little bit of time with this file. Josh’s case was the #1 priority all of the time.
While I had never had a similar situation, my father did early in his career. One of his law partners was vacationing in Daytona Beach and suffered the loss of a young son who was run over on the beach. I remember that being a difficult situation for my dad having to deal with a law partner’s tragedy. Josh’s case fortunately did not end up rising to that level, but for a while we were not sure about that. We were hoping for the best, but we were clinging to daily reports and whatever information we could glean from Chuck and Joann.
Once Josh’s condition was stabilized, we had to start making a lot of decisions in terms of where we were going with the case from a legal perspective. One of the first questions was, “Is the insurance company for the pool going to force us to prove a liability case, or were they going to recognize their insured had some shortcomings in terms of the pool?” So, the early game plan was to find out the answer to that question. If they were not going to fight us on liability, we were going to take our time, let Josh get the treatment he needed, and when the time came we would simply submit a demand for payment.
I don’t think the insurer was prepared for that question during the early part of the case because they kept putting off making a decision, and then indicated that they had to discuss the matter with their legal counsel. Basically I understood that they would accept a demand from us as long as it was a “low level” demand, i.e. a nuisance value. They were saying that they did not think the pool was unsafe based on what their “experts” had told them. So, I discussed the matter with Chuck and that pretty much sealed the deal to file suit and learn more about what the defense’s case would be.
At this point in the case, we had already played out hand. The defense knew we had a pool safety expert and they videotaped him doing his inspection, but we did not know anything about their expert. When we filed suit, one of the first things that we wanted to do was have them identify their expert, outline what the expert was going to say, whether the expert had been to the pool, and what conclusions the expert had reached. It took what seemed like forever to get that information.
We had secured out expert and he had reviewed the law regarding how diving board guardrails are supposed to extend to the water’s edge. And so on our side we were scratching our heads trying to figure out how they were going to rebut that. Were they going to try and argue that the code did not apply?
During this process while we were waiting for them to disclose their experts, we were taking depositions of the people on the defense side, particularly lifeguards and other pool employees. It became clear throughout that process, especially after the testimony of the pool owners, that they were going to rely on the County Health Inspector’s lack of citations to carry the day for them. In other words, their theory was that “unless we are told there is a violation, we must be in compliance.”
I found the defense’s theory to be interesting, but it still didn’t answer whether they were going to have a separate pool safety expert to give testimony to back up their theory. So we continued to wait for the defense to disclose their expert.
As we waited for word on who the defense expert would be, we allowed the defense to perform a day-long psychological evaluation of Josh which took place at a hotel during December 2011. Once again, the problem was us having to wait to learn the psychologist’s opinions. Our frustration was growing. First, we weren’t finding out what the defense’s position was on the pool safety rules, and now we are having a problem learning what their position was going to be regarding Josh’s psychological condition.
From a personal standpoint, I am a pretty laid back individual when it comes to these types of disputes. But, that doesn’t mean that everyone falls into that category, especially when you’re the father of the injured child. So I had numerous discussions with Chuck as to when we were going to get this information and it was pretty clear that there was some evasiveness on the part of the defense. For some reason they wanted to find out everything about our case before providing us with their expert reports. We went in front of the judge for a hearing on the matter and we came to an understanding as to when we were going to get the defense’s expert reports.
I think it was probably on a daily basis that I would be visited by Chuck and we would discuss what it was that the defense was hiding and when the information would be forthcoming. In every other case I have had where the defense performs its own psychological exam, the doctor’s report is forthcoming shortly thereafter. The defense in Josh’s case wanted to take depositions of school teachers and have the teachers fill out forms before they would give us any kind of a report. This effectively increased the tension.
What sets this case apart from any other case I have handled over the years was that there was a lack of detachment. As lawyers we are trained to be independent advisors showing a level of detachment so that we can be unbiased and give prudent legal advice. That was very difficult to do in this case. Chuck had a very real case going on with a loved one, and every letter that we received and motion that was filed became personal to Chuck. Even though I told him that I engaged in the same conduct as a defense lawyer in the past, it didn’t change how he felt about the tactics.
A lot of my time was spent calming Chuck down or seeking solace in the other direction by dealing with one of the three defense lawyers, asking him, “What’s going on here? Do you realize one of the other lawyers you are working with just did X, Y and Z?” He would often say, “No.” A problem on the defense end was that the three defense lawyers seemed to be acting independent of each other.
Then there was the issue with Josh’s school. All of this time it seemed to us that the defense must have something up their sleeve, because they kept taking depositions of school personnel, and some of these people did not even know who Josh Boyk was. It was odd how in these depositions the defense would find out after the first few questions that the person never even knew Josh, but the defense lawyer would then continue to ask questions. It was odd and I had to state many objections.
One of the issues that predates everything I have talked about so far had to do with an initial meeting that I had with Chuck about the handling of the case in general. Chuck asked me whether he thought that we could handle the case in-house (meaning me being lead counsel on the case with Attorney Nick Dodosh assisting in research and writing) or whether we would employ another law firm to handle the case. I did not want to tell the guy that signs my paycheck that he had to seek outside counsel. So, I gave the answer that I thought we could handle the case in-house, which I knew we could.
The whole backdrop of the case is that I was representing my boss, the owner of the law firm, and I often thought to myself, “What is my greatest fear?” My greatest fear was taking this case to trial, asking the jury for a high amount of money, and then have the jury give me nothing – and then having to go back and work for Chuck. Essentially I was in fear of losing my job over one case if bad things happened. Whenever I would talk with the lawyers on the defense side, they would joke around with me and say, “I wouldn’t want to be in your shoes!” If you are a defense lawyer and you perform poorly, you might lose one of your insurance clients, but you still have 20 others that are going to send you business. But, if you lose your boss’s case, that may be enough to earn yourself a pink slip. On a personal level, the fact that we were able to come to a settlement relieved a lot of the tension from my work life.
I think that it is a good thing the case did not go to trial because I believe that the final jury verdict could have gone either way. The jury could have said that they didn’t see this as a big deal, the board was the way it was for a long time, they passed every inspection, and we just don’t want to hold them liable. Or, the jury could have said that it was a clear violation of known safety rule and give us a pretty decent verdict. So there was a lot of variance in risk for both sides, which usually means that a case should be settled, and that is what happened here. I don’t think that either side was thrilled about the settlement, which is usually a good sign that it actually was a good and fair settlement. When you are looking at a certain amount of money on the table, you have to view it in terms of risk. It becomes tough to say, “I am going to reject X amount of dollars and submit this case to eight strangers who don’t want to be on jury duty.” I think Chuck and Joann made the right decision to “know what they were buying” and settle the case for a known settlement value rather than roll the dice with a jury.
Lesson to be learned: The attorneys in my office helped me in my time of need as a client, and they can help you too.
Attorney Charles Boyk knows that his attorneys helped him throughout his son’s case, and they can do the same for you in the event that your child is injured. Call our office to speak to an attorney over the phone and you’ll know instantly that they genuinely care about your case and what the outcome will mean for your family.