Law Office of Kenneth E. Berger, LLC

My client was in a terrible crash on I-95. The collision spun her vehicle off the highway, crashing through trees. One tree snapped and crushed her roof. The car began to fill with water. It was terrifying. After the crash, my client tried to get back to her work in real estate. And even though she was physically able to drive, the psychological impact and post-traumatic stress from the I-95 crash made it difficult for her to get on the road. She fell into a vicious cycle. At first, it was just I-95 she sought to avoid. Then she tried to avoid interstates altogether. Next she limited driving at all. In an industry where networking is nearly everything, my client went from being a self-described social butterfly to a hermit. With isolation came feelings of depression. At night her mind fixated on the different ways she nearly died in the crash. Her self-image shifted and self-doubt grew. Thankfully, she’s now getting help and has begun to regain aspects of her old life. At the same time, her case illustrates a topic most lawyers should probably discuss more and understand better: PTSD. I think we all understand that clients come to us for help after a traumatic event, but we don’t necessarily appreciate how their trauma compounds and spreads. I asked Dr. Dawn Sheehan, a clinical psychologist, to join me on the Best Practices podcast to talk about a trauma-informed approach to supporting our clients.? https://lnkd.in/emrH4iqr Following a traumatic event, many people experience acute stress disorder, followed by post-traumatic stress. Then comes avoidance and paralysis, and later anxiety and depression. Our clients might try to put their heads down and get through it, but for a person suffering from acute stress disorder or PTSD, that mentality can cause further damage.?If they could solve the problem on their own, they would have done so before it got so bad. They need help, and help starts with understanding. The better I understand what my client has been through and is going through, the better able I am to tell her story and present the damages in a truthful, accurate, and persuasive way. But even more significantly, more understanding, support, and professional care are how folks like my client living with PTSD can regain their quality of life.

Most approaches to jury selection are focused on keeping “bad” jurors off the jury. Tom Grillo takes a different, less exclusionary approach. Instead of trying to keep every potentially problematic juror out of the jury box, Tom builds trust with them. On my Best Practices podcast, Tom talked about Nick Rowley's concept of "brutal honesty." I remember being struck by the concept of brutal honesty when I read Nick's first book, Trial By Human. It means being straight with people in court, especially about the parts of your case that aren't great for you and your client. As people's skepticism of lawyers and the system continues to increase, that's ever more important in the practice of law. As Tom said, “If you lose credibility or don’t come across as authentic… you might as well go home.” And at trial, a surefire way to damage your client's interests is to pander to, look down on, hide things from, or play games with potential jurors during voir dire. That's why brutal honesty is essential for how he picks a jury. Being vulnerable with a panel of potential jurors allows them to do the same with you. That builds trust. I practice in South Carolina, a state with unusual rules that make meaningful voir dire difficult. My hope is that changes at some point in the near future, giving potential jurors freedom to share their truth, brutal or otherwise. Do you get brutally honest with potential jurors?

The judge and jury were already waiting when David and his expert witness walked into the courtroom. The expert had locked her car keys in the house that morning. The poor woman had to climb in a second-story window, get her keys, and drive to the courthouse. This was weeks into a trial in Muskogee County, OK, so everybody might have been a little annoyed at the delay. David Holt is a fantastic trial lawyer. His client in that case had suffered a traumatic brain injury (TBI) when a forklift exploded at the Georgia Pacific plant where she worked. After five years of litigation and months of preparing for trial, David decided that this expert, the therapist who treated his client, would be his final witness. He believed that she would give the jury the best sense of what his client would live with for the rest of her life. But the therapist was a bit of a wild card. She wasn't deposed in the case, so David didn't know how she would do in front of the jury or even what she would say. On top of that, they'd kept everyone waiting. A lot of lawyers might panic in that scenario. David didn't. He leaned into it. He asked everybody to take a breath. Then he asked his expert to explain why she was late. By the end of her story, she had won the jury over. Because the defense hadn't deposed her previously, they had less to go on in their cross examination. What had looked like a gamble ended up a stroke of genius. After an 8-week trial, the jury returned a $10 million verdict for David's client. It's a record verdict for Muskogee County. I had a great time talking to David about this case on my podcast, Best Practices. You can listen to the full conversation here. https://lnkd.in/eFna3fuK When I'm preparing for trial, one of my main goals is to avoid surprises. They are inevitable, though. Sometimes, the best thing we can do is lean into them.

"Persuasion is one thing. Control is another. There is wisdom in knowing the difference."

A while back, I had lunch with a legendary trial lawyer here in South Carolina. We talked about winning and losing trials. "If I win, I win. If I lose, I lose. Either way, I'm going to die. Might as well have some fun and do what I think is right along the way." His mindset gave him a clear moral compass and took away the pressure I often feel. If you try cases for a living, you can count on two things being true: 1. You will lose trials. 2. The list of things you cannot control in the courtroom is a long one. I cannot control a judge, jury, or the decisions they make. Nor do I have control over: ? the court schedule; ? whether all the witnesses show up; or ? what those witnesses say on the stand. Conversely, there are a few things I can control: ? my preparation; ? my spiritual, mental, and physical state; and ? how I treat people. Like that legendary trial lawyer, I want to do what I think is right and let the chips fall where they may. I've found that the better I do adopting that thinking, whether I'm in court or not, the more fun I have. And the better I do as a lawyer. Perhaps it can all be summarized by the Serenity Prayer, which pleads: “G*d, grant me the serenity to accept the things I cannot change, courage to change the things I can, and wisdom to know the difference.” Persuasion is one thing. Control is another. There is wisdom in knowing the difference.

"Practicing the law gives us a daily choice: Will we be bystanders today? Or will we be upstanders? Bystanders stand by and watch as injustice happens. Upstanders step in and stand up for somebody who needs support, protection, or help."

Congratulations to Attorney Kenneth Berger on his second consecutive recognition in the 31st edition of The Best Lawyers in America? for Personal Injury Litigation - Plaintiffs! Since its first publication in 1983, Best Lawyers? has earned a reputation as the definitive guide to legal excellence. Recognitions are based solely on Purely Peer Review? evaluations. For the 2024 edition of The Best Lawyers in America? , over 13.7 million votes were analyzed, leading to the inclusion of more than 76,000 distinguished lawyers in this milestone 31st edition. #LOKB #SCLawyer #BestLawyers #PersonalInjury

"Our human values - the ones we inherently possess as children and which still guide our best and truest selves - are at the core of both our lives and the law."

Attorney Kenneth Berger was selected for Columbia Business Monthly’s 2024 Legal Elite of the Midlands for personal injury law. The Legal Elite award program honors attorneys in the region for their exceptional talents and commitment to the legal profession. This is Kenny's 7th consecutive Legal Elite recognition. The mission of Kenny and The Law Offices of Kenneth Berger remains steadfast: to advocate for victims of life-altering injuries with compassion, dedication, and respect. #LOKB #LegalElite #SouthCarolina #SCLawyer

I learned early in my career that if a bank teller liked my case, I was in good shape. For several years after opening my own law firm, I did most of the bank runs. In doing so, I got to know the bank tellers pretty well. They knew I was a lawyer and sometimes asked what I was working on. Years before I started using focus groups, I'd talk to the tellers about cases I was working on, trying to get a sense of how potential jurors might feel about the case. Almost immediately, I saw that the tellers could be skeptical and even cold-hearted toward plaintiffs. I had a hard time reconciling their view of my cases with their otherwise warm, engaging personalities. Then it dawned on me: Bank tellers (who typically aren't highly paid) spend their work days handing money out to other people. The last thing they want is to give a handout to yet another potentially undeserving person, especially when that handout might equate to 10, 20, or 50 years of their salary. After realizing that, I changed how I presented my cases to the tellers. At first, I'd lead with conclusory statements about how great my client is and how much their life had been damaged. I instead started leading with the defendant's choices. I'd tell the teller what happened, and I'd let them decide whether a defendant acted recklessly and must be held accountable. In dollars and cents, my bank teller friends liked the idea of someone in the wrong being forced to pay far more than the idea of giving someone anything. My experience with those tellers taught me a few things: ? Life experience and perspective shape jurors' views far more than race/gender/ethnicity; ? If the jurors aren't buying my client's case, me selling it harder only makes things worse; ? The best starting point for an opening is often how a defendant chose to knowingly endanger other people's safety; & ? If you want to know what a case is worth, don't talk to lawyers. Go talk to the types of people who could end up serving on the jury. Obviously, this was all anecdotal information. Today, we rely heavily on focus groups for our cases. But if I want a free read on my case, I might still run by the bank and ask, "May I tell y'all about a case I'm thinking about taking?"