Story of the 6.5 million dollar verdict in the Lopez v. Rich’s et. al. case
Plaintiff: Lisa Lopez
Defendants: Here We Go Inc. D/B/A Rich’s Night Club
Trial Date: July 18 to Aug 1, 2017
Plaintiff represented by: Theresa Bowen-Hatch; Nicholas Rowley, and; Haytham Faraj
Defendants represented by: Jamie Keaton and William Percy from Schlichter and Shonack
LLP for Here We GO, INC.
Peter Garchie and Mary Wyman from Lewis Brisbois, Bisgaard
and Smith for XL Staffing, Inc.
Rich’s San Diego is a well-known gay night club in San Diego’s hip Hillcrest neighborhood. It attracts large crowds of all sorts of people. Rich’s is owned and operated by Here We Go, Inc. Here We Go, Inc. pursuant to the requirements established by its entertainment license that is issued by the City of San Diego with conditions established by the San Diego Police Departments hires and employs trained and licensed Security guards provided by XL Staffing, Inc.
On December 21, 2012, a few friends decided to get together to have a few drinks at the home of their friend Matt Delangel. Present at this gathering were Matt, Charlie Burris, Lisa Lopez and a few other people. After a couple hours of drinking they decided to go Rich’s to continue the party. Richard Burris also intended on meeting a girl there that he has been dating by the name of Sandra (Liz) Beyl. Sandra liked Charlie a lot and went to Rich’s believing that Charlie was waiting for her there so they can be together, alone.
Charlie, Matt and Lisa along with a handful of other people including a couple of girls, arrived at Rich’s at about 11:30 p.m. Rich’s was already energized. People were dancing, drinking and generally having fun. It was crowded but it was not packed yet. The friends went to the bar and ordered beer. Sandra (Liz) arrived a few minutes later, ordered a beer at the bar and texted Charlie to find out where he is. He told her that he was already at Rich’s. She “Liz,” began to look for Charlie. She spotted Charlie with his friends but her attention was drawn to the girls that were in the group with him. She was already drunk and now she felt a wave of jealousy and disappointment. She expected to have Charlie to herself. She did not know who these girls are and was upset that he did not tell her that he would be here with other girls.
When she approached Charlie, he was glad to see her but she immediately pulled at him and began to question him about the girls. The people in the group could tell that she was angry and upset. They could not hear what was being said but clearly there was an argument. A nearby security guard also watched the angry interaction. The verbal confrontation continued for a few minutes as Charlie attempted to explain that the girls are just friends. In fact, he tried to tell Liz that Lisa is his best friend’s wife and the other girls are just friends. The music, noise, alcohol and jealousy prevented Liz from grasping what Charlie was saying. Charlie persuaded Liz to move to the bar hoping to be heard. But things seemed to get worse. Lis now clawed at his face hit and scratched him as he unsuccessfully tried to calm her down. Trial testimony by witnesses would reveal that the two bar tenders watched elbowed each other and laughed as the tiny girl was clawing, scratching and hitting this much larger and taller man. About 10 minutes into the argument Liz and Charlie moved to another area at the edge of the dance floor near a ledge where his friend Matt danced shirtless with Lisa. After a few additional minutes of argument and no action by the security guard or by the bar tenders, Lisa decided to try and calm things down between Charlie and Liz. She stepped down from the ledge, walked over to Charlie and Liz and said “hey guys stop arguing. Let’s just have fun.” She had barely finished her sentence when Liz, now infuriated by Lisa’s attempt diffuse the argument when she was the topic of argument, lifted and her and with as much power as she could muster hit Lisa in the head with a half full corona. The bottle shattered on Lisa’s head sending a shard of broken glass through Lisa right eye ball, tearing the cornea and rupturing the globe and lacerating her forehead. Almost immediately a nearby security guard jumped into action and grabbed Liz. Lisa’s friend Matt went to her aid and placed his shirt on her head and face. They went to the bathroom to assess the damage. In the bathroom, they could see that it was very serious and decided to rush to the hospital. They went out the back door and headed for their car and then to the hospital. Lisa could no longer see from her eye. Doctors worked to save the globe which they did but her eye sight was gone and would remain gone.
Trial commenced on July 18, 2017, in San Diego. Voir dire was conducted by Nick Rowley who used a classic Trial by Human voir dire. He began by discussing brutal honesty and what it means to the individual jurors. One by one jurors shared what brutal honesty means to them. He asked them to be brutally honest with him and to be talkative. They complied. He discussed a variety of issues that he had identified before trial, including law suits for money, the value of eye sight, millions of Dollars for damages and he listened. He told the jurors that he is just looking for a fair trial that by pristine jurors. He’s not looking for favors or sympathy but wants pristine jurors that will listen to the evidence and decide without bias to either side. The take away lesson here is simple. Honor the jurors’ gift of sharing by listening. Remove the word “but” from your lexicon when conducting voir dire. Use of the word but means the lawyer is trying to change a juror’s mind. And that is a receipt for failure. Be as brutally honest as you have asked them to be and listen intently.
There were a couple of stipulated excusals for cause of jurors that had been to Rich’s. A few other jurors were peremptorily excused based on their answers or backgrounds. Not all preemptory cause challenges were used.
Nick opened with a story in action. He set the scene and showed the jury what happened at Rich’s on December 21. The defense opened by focusing on the Sandra (Liz) Beyl and hammered their theme that no one could have foreseen the criminal conduct by Liz.
The entertainment permits issued by the City of San Diego provided a perfect set of rules to establish the Rules of the Road. In fact, the Rules are the conditions imposed by the San Diego Police Department as the prerequisite for operating a night club with a DJ and alcohol. Theresa Bowen-Hatch did a masterful deposition of the defense security expert. She had him ratify the existence of the entertainment permit and the conditions (rules) that Rich’s must comply with. She also had him agree to the rules that security guards must follow based on the training required by the state of California. She, then, methodically went through the rules that were violated by Rich’s and XL staffing. Because the Rules were already set forth as conditions to the entertainment permit, they became an exhibit that was projected on a large split-screen as the defense expert video deposition was played. The defense expert video deposition was the first evidence that the jury received because it established the Rules of the Road for the remainder of the trial. The plaintiff’s security expert testified second and also reaffirmed the importance of the Rules in ensuring community safety and security. He explained the “why” that underlies the need for the Rules. The purpose for the rules is not merely to ensure a safe environment in the clubs but to also protect the community. The Security guards are alter-egos of the police. When the City of San Diego says you can sell alcohol in this community, the expectation is that businesses will not create an unsafe environment within the community from violent or irresponsible behavior by patrons. The message from the expert is that the Rules contemplate that when people drink, they will get drunk and when they get drunk bad things might happen. It is the club’s and the security staff’s responsibility to anticipate misconduct and to prevent it when possible. The trial would reveal that the club and security guards were on notice, observed the argument devolve and grow but chose to do nothing.
Using Action to Tell the Story
Lay witnesses were the people present on December 21 and who described the length of the argument as lasting between 10 and 15 minutes. They showed the story of the scene at the club, of the security guard who stood within a few feet of the escalating argument and of the bartenders who elbowed one another and laughed.
Through Lisa Lopez’ testimony the jury learned of the impact of the loss of eye sight, the regular debilitating pain associated with an injury to an eye and the brave struggle by a person who refused to succumb to victimhood. The defense discovered that Lisa continued to work, remained as active as possible by continuing to paddle board and to take day trips to Mexico with friends. They learned that she continued to drive and ignored that she fears driving because of the loss of depth perception and the blind spot on one side of her body. The defense attempted to minimize the loss of eye sight by pointing to what Lisa can still do hoping for a discount. Lisa’s struggle to overcome the injury allowed the jury to empathize and spurned them to want to help her. Nick skillfully presented that evidence by embracing it, rather than minimizing it. Coming back to it made the defense seem petty and their arguments later specious.
In deciding how to present the case the team decided to put the story into action based on methods developed and learned at the Trial Lawyer’s College. In preparing for opening the team discovered the story by dramatizing the scene. That allowed Nick to act out the action in the opening statement and later in closing. The highlight of the action and scene setting moments came in the closing argument. Nick asked Haytham and Theresa to be ready to demonstrate the lengthy argument between Liz and Charlie. He wanted to show how obvious the argument would be and why it could have been so easily diffused. This would show the jury why Rich’s management and the security guards’ inaction makes both more culpable for the injuries than Liz. The dramatization of the scene would bring the jury to the bar and would place them in a position where they might feel compelled to take-action or wonder why the parties endowed with authority and trusted with responsibility to take-action to protect patrons from what is clearly foreseeable, failed to do so. If the defense does not object to demonstration by Haytham and Theresa, the jury will be able to see, feel and grasp the amount of time that had passed without any action by the bar management or the security company. And if the defense objects, Nick would state “see how it is stop an argument.” The plan came together exactly as contemplated. At the appropriate time, Nick gave the signal. Haytham and Theresa stood up and began the verbal and physical argument without using sound. The defense objected within seconds. The judge sustained. Nick says: “see it doesn’t take much to stop an argument.” The full gallery of observers erupted in laughter and applause. They were joined by the jury who laughed and smiled as well. The point had been made. Even a bar tender could have interjected and said. Hey guys is everything ok? rather than elbowing one another and laughing.
Damages as a Function of Community Values
In framing the value of the lost eye, Nick appealed to the jurors’ collective valuation of eye sight and what we do with that sight. He reminded them that this is the only trial Lisa will have. She cannot come back in the future if her sight in her good eye fails. She cannot come back if the pain increases. She cannot come back at a later time and plead her inability to do certain work. He re-empowered the jury by reminding them that this is their community and their safety standards. The verdict is a message to either abide by the rules that we as a community have established for operating a night club or pay the full price for your negligence. They would get to say what the price of losing eye sight in an eye.
The jury returned a verdict for the plaintiff in the amount of 6.5 million dollars. They apportioned 50% responsibility to XL Staffing, the security company. They apportioned 35% responsibility to Rich’s, the night club; and 15% responsibility to Liz. Nick had recommended that she be held 10% responsible. The verdict is subject to 10% interest over a two-year period which will add at least 1.3 million Dollars in judgment interest. Judgment interest will be awarded because defense ignored an offer to settle for $750,000 that was made on July 28, 2015. Exactly two years and three days before the jury reached its verdict. In all the defense ignored a total of seven offers to settle. Five offers to settle within the one million Dollar policy were made in the two years preceding trial. A sixth offer to settle was made on the day trial commenced for the one million Dollars value of the policy. After opening statements, a seventh and final demand was made and ignored for 1.5 million Dollars. The defense countered with a $500,000 offer that was ignored by plaintiff.