Inside the Attorney’s Mind: Kellie O’Connell with Levine Law – Cases Won Based on Jury Preference, Not Facts

Also listen on:

Connect with Levine Law:

Ted: Kelly, thank you so much for being here. Again, to give you a quick recap, the purpose of the podcast is to help the expert witness community. I help expert witnesses with their web design and SEO to help them get more clients, and a lot of them had questions about how attorneys think. And I thought, instead of Googling or ChatGPTing what an attorney might think, I figured why not ask them in a podcast.

Kellie: Yeah, I appreciate it. Thank you for having me. I’m honored.

Ted: Of course. So, you know, at the beginning, I like to give you the opportunity to talk about you, your law firm, who you help, and tell us more about you.

Kellie: Yeah. So obviously, my name’s Kelly O’Connell. I recently came back to Denver, Colorado from Florida. I am a native of Colorado. I grew up in a super small town called Conifer, Colorado, and I moved to Florida for [00:01:00] undergrad. I went to the University of Tampa, decided to stay out there for law school, going to Stetson, and ended up working out there for a while.

I practiced criminal defense, personal injuries, consumer protection, and class actions for many years out in Florida. It was an amazing experience, but it was time to come home, and so I came back to Colorado. I’m in the Denver area with Levine Law now, and I’m a trial attorney with them. We get to help people all over the state of Colorado, not just in Denver, with personal injury, car accidents, slip and falls—anything on a premises, pretty much anything where someone gets injured at the hands of another. We handle everything and help people, and we’ve been doing it for over twenty years in our community and recovered a ton of money for our clients. So we’ve made a really good impact, and I’m honored to be with this team.

Ted: That’s awesome. Would you say there are some cases where you’ve helped someone that maybe other firms couldn’t help, but you guys were able to help?

Kellie: Yeah, I think a lot of it has to do with the fact that there are a lot of personal injury firms out there, including a lot of big ones that probably don’t always have the biggest attention to detail, or will keep a case for a certain point and then ship it to a different firm and have clients ping-ponging back and forth. We handle everything at our firm.

So if something is pre-suit while someone’s treating, up until if they have to litigate, if they have to go to trial, we handle every step of the way for our clients. People really appreciate that it’s the same faces, the same people that they’re talking to for the whole duration of the case, and they appreciate being heard.

The majority of people—I think a lot of issues arise in the legal industry just from people not feeling heard or acknowledged. And obviously people are coming to us with a very sensitive topic. They’ve been injured. It’s oftentimes the worst time of their life, and they are struggling. They just want to feel better and they’re overwhelmed with medical bills that they can’t afford. So handling it delicately and understanding the position that they’re in and handling it seriously is important.

Ted: Good thing you can help them out. And I know you mentioned that you also help the whole state of Colorado, not just Denver. Let’s say if someone is maybe a bit far away, like Colorado Springs or even further south—do they have to come to you or do you go to them? Is it remote?

Kellie: It varies based on everything. So our office is located in the Denver Cherry Creek area, but we are pretty flexible depending on what happens. Obviously, we have cases all over the state. For purposes of a trial, a lot of situations like that will usually be in the county either where they live or where the accident occurred.

But it kind of depends on a case-by-case scenario. Obviously, it’s understandable that people don’t want to drive after being in car accidents, things like that. We tend to be pretty flexible so that we can meet people where they are. They can come to us. We can [00:04:00] handle things in many ways. Thank God for technology nowadays, especially after COVID. There are a million ways to handle things virtually. And so the goal is always just to make it as easy as possible on our clients and make it so that they feel the most comfortable. That kind of varies depending on who it is and what their interests are.

Ted: Oh, okay. And for anyone that may have been in a car accident, I know money is a big factor for them. How does that work with you if someone wanted to work with you? Do they have to pay you upfront or later?

Kellie: Yeah. So these types of cases are typically handled on what’s called a contingency fee basis. For clients that come to us, we have them sign an agreement that says a lot of firms or advertisements will say, “Hey, we don’t get paid unless you do.” That’s the layman’s or easier term of saying a contingency fee agreement where we get paid later once a settlement’s worked out.

So they’re not paying us hourly, they’re not sending us bills because attorneys can be expensive. We get paid at the end, [00:05:00] and so it does motivate attorneys, hopefully, to settle a case and to get high, good value for the cases for their clients, because it also benefits them by receiving a certain percentage of what the case settles for.

In most firms—I can’t speak to every firm obviously—but at least our firm, we try to be pretty good about covering as much of the costs as possible for clients throughout the course of litigation for things like mediation, court reporters, and expert witnesses. That money is coming out of the settlement at the end and it’s not putting the clients in further financial holes.

Ted: Okay. Good thing you mentioned the expert witnesses. I actually had some questions about that. One of the questions I had was: when working with an expert, I know there’s a lot of solo experts and then there’s also experts that work with a company. Do you prefer if an expert works for a bigger expert firm or if they’re a solo practitioner? Does it matter?

Kellie: Personally, it doesn’t matter to me that much. It more matters to me the type of expert they are and the kind of work that they do. There’s something that’s said—usually when they work for bigger companies, it’s only expert-related. I mean, there are some issues sometimes with it, but there can be issues on either side. So it just depends on getting experts that are easy to work with and know their stuff. And there’s plenty of things that I would love experts to do and not do.

Ted: Yeah. What would be one of the things that you would love them to do?

Kellie: Yeah. I think it would be helpful even starting from the very beginning when it comes to hiring experts. Obviously, they send us their resumes, they send us CVs listing out all the work they’ve done, which is incredible. But sometimes it’s more helpful to hear from the attorneys that they’ve worked with.

So I know when you’re applying for jobs, you have reference letters. It would be super helpful to get [00:07:00] reference letters essentially, or at least contact information for attorneys and cases that they’ve worked on, what the results were, the gist of their testimony—things like that. So we can see in a real world sense if yes, they can testify and are they good at it, or what kind of effect did they have on the case overall, and what was the successfulness of the case?

Obviously, you can’t win every case. No case should only come down to that one expert. But it is helpful to evaluate it because you can only tell so much about someone from a resume or CV and talking to them.

Ted: Okay. That’s very interesting because one expert told me one time that they don’t really like giving out or putting the attorneys that they like working with because then there could be a conflict of interest or something like that, or maybe the opposition could use that against them—”Oh, they know each other for a long time,” type of thing. Do you think that’s true?

Kellie: We do our research anyways. I mean, when it comes to experts on the defense side, we’re researching all the cases that they’ve testified in—if it’s always been on the defense side and it’s never been for a plaintiff, and the positions they take, and we look at their financials as to where their money is coming from.

So I mean, we’re gonna find out a lot of those things on the front end anyways. And on the plaintiff side, a lot of plaintiff attorneys talk to one another and say, “Hey, I need an expert for this type of injury. Who do you recommend? Who have you gotten great results with?” And they’ll refer experts to one another.

So I haven’t seen it necessarily be an issue because as part of our due diligence in finding good experts is seeing what they’re like when they testify and the kind of work that they do.

Ted: Yeah. And then even from your end, if an attorney refers you to an expert and then you go and see their expert website and they have good [00:09:00] testimony from that attorney, would that add some more credibility to him? He told me he likes working with him and left him a good review as well.

Kellie: Yeah, it’s always super helpful. Obviously, most experts don’t have transcripts of their testimony. The majority of cases, especially if they weren’t deposed, you don’t oftentimes have deposition or transcripts from a trial—usually only just depositions. But anything that an attorney—I tell my clients, I tell anyone—I always prefer more information than less, and we can filter through as to what we think is the most helpful.

But it tends to help, and every little bit helps because you don’t want to pick a wrong expert and have it affect your client at the end of the day.

Ted: Yeah. And talking about transcripts briefly, I know in a way that is public information. Anyone can just get it if they find it. And I was telling the experts that it might be good to have the transcripts available just if an attorney wants to request them. But they said that it might be a little bit [00:10:00] risky. And I was wondering if you had any thoughts on that. Would it be risky for them to just be giving out transcripts, which is public information anyways?

Kellie: It’s some and sometimes isn’t public information. I mean, obviously there are ways you could redact it to only include that specific portion of an expert’s testimony, and in some ways it is covering medical information, things like that—which is privileged and can come to HIPAA. There are ways to nuance and get around it, things like that. And obviously getting the consent of the attorney and the patient that worked on the case initially of saying, “Hey, we have these transcripts. Am I able to use it just for the limited purposes of getting hired on some other cases so that these other attorneys can see?”

But a lot of the times, again, attorneys are pulling that information from prior cases anyways and seeing how experts testify. I mean, we pull it on a lot of defense experts that insurance companies like to [00:11:00] use the same experts over and over and over. And those same experts take the most ridiculous positions in cases that does not seem to be backed by science or medical opinions, but it’s helpful to be able to see stuff like that. And if they can make our jobs easier as attorneys, well, it’ll always be much appreciated.

Ted: Awesome. That’s what they’re there for, right? To make your job easier. That was an interesting comment about the defense experts that insurance companies always use. In a previous episode, we were talking about red herrings and how it seems to be somewhat of a strategy. Have you ever seen these experts come up with just something completely absurd where it’s like, why are they even saying that?

Kellie: Yeah. Especially in the personal injury realm. In criminal defense, the experts are a little bit different, but when it comes to personal [00:12:00] injury and medical records and injuries, testimony from doctors—things like that—we’ve seen some crazy stuff. Where it’s a young client who is maybe a teenager with an active lifestyle, no prior injuries, no issues, and they now have issues within their spine, and the defense’s expert comes in and says, “Oh, they have those issues because it was preexisting from their posture.”

I’m like, they’re a teenager. Even if they do have bad posture, it hasn’t been long enough to be causing those types of injuries. It is okay to be honest and say it was from an accident. And that’s my biggest thing for most experts or any experts that I work with—I want them to be truthful and honest.

My case isn’t built solely on their testimony. They are a chapter in a book, and so they get more credibility by being honest with the positions they take about records or what a client’s diagnosis is—things like that—than trying to pull [00:13:00] something out of thin air that doesn’t make sense. And the jurors know.

Both defense attorneys and plaintiff attorneys, we all know that when it’s not genuine, and it doesn’t help anyone. And we pay a lot of money for experts. So I might not be the same as everyone. Obviously these experts take those positions for a reason. I’m sure there’s been attorneys that encourage it, but I tend to prefer that they’re truthful.

And if there’s something damaging to my case that comes out, there are ways we can go around it. It’s my job to mitigate that and to tell the story as a whole. And it should never ride on just that one expert’s testimony. So I would prefer that they’re personable and truthful and that they can acknowledge when there are issues, and it goes a lot further for the credibility of their testimony as a whole.

Ted: Yeah. I like what you said about them being a chapter in a book because it’s also unfair to say that a full case is gonna be won because of this one expert, right? There are so many factors that go into it. [00:14:00] When you are looking for a new expert, whether you found him online or he was referred to you by another attorney, and let’s say if he was referred to you by another attorney and they have great things to say about this expert, what is some due diligence that you do anyways to make sure it’s the right fit?

Kellie: Yeah. I mean, we still ask around to other attorneys, see if they’ve worked with them, what the kind of result was of the case and the testimony that they provided. Looking at their references, seeing if their testimony’s ever been struck by a court before—kinda going through the motions of all of that, and also just talking to them.

Seeing if we can get a good relationship going and how they respond, even just answering questions, things like that. If on a basic conversation they don’t let me get a word in and they’re rattling the whole time, then they’re probably gonna be like that on the stand, and it’s gonna be really difficult for me to do my job and [00:15:00] to be able to get them to where we need them to be.

So it kind of depends, but it varies obviously what their specialty is. But it’s important to do the due diligence and talk to them upfront.

Ted: Okay. That’s interesting. So if an expert talks too much where they’re—there’s like a word for it, like steamrolling you or something like that—then that’s not a good trait for them to have. Is there other traits outside of that one that would raise any flags about an expert?

Kellie: Yeah. Generally, like a lack of preparedness—not reviewing the records, not talking to the attorney that hired them ahead of time to look and see what their goal is, what they’re trying to get out of their testimony. Some of my biggest complaints sometimes with witnesses is that they are uncontrollable. They are on a train and they go right through and you can’t rein them in. It’s great that they’re super knowledgeable and they want [00:16:00] to tell everyone about all this knowledge that they have and their opinions on the case, but sometimes we intentionally structure things—again, it’s like a story or a book where there are things that an author could leave out intentionally or things that they want to introduce later on.

And so by direct and even on cross, we are intentionally trying to pull information out at certain points. So when they go on long tangents, it’s not always helpful and it can do more harm than good. And then, kind of in with what we’ve discussed previously, is their unreasonable positions or things that clearly are—they’re doing it because they’re paid and they need to come up with some sort of theory that disputes the other side.

And then finally, just costs. There are a lot of experts out there and their pricing ranges vary. I fully support that they do a great job and they need to be paid for their job. Arguably, it’s like attorneys—everyone says we’re overpriced. In personal injury, it’s not as much of an issue because [00:17:00] we’re fronting costs for our clients so they’re not paying for it out of pocket.

But like when I was doing criminal defense, some people—their trial would be benefited so much from experts but they don’t have the money to be able to pay thousands and thousands of dollars upfront for this person to testify. And in those cases it affects their freedom. And I think looking at financially what a reasonable price for the services are and working with people on payment plans, things like that, is always super helpful. Because it’s a needed service but also many people can’t afford it, especially if they’re not on a case that’s a contingency fee arrangement and they have a firm that’s willing to front the costs.

Ted: Interesting. And what would you say are some of the things that some experts can do to really justify their price if it’s above the average? Actually, first question is: what would you say is the average [00:18:00] price of an expert?

Kellie: Oh God, there’s not really a set number. It depends on what type of expert they are—like what they’re testifying as to or what their specialty is. It varies based upon what that is. But I tend to prefer experts that bill hourly or based on what the total time spent on things are, and aren’t just huge flat fees.

I’ve had experts in cases that say, “Yep, my fees are $3,500 up front no matter if I testify for five minutes or five hours.” And it was an expert that we didn’t need for very long. Their total testimony would’ve been ten, fifteen minutes maybe. And for something like that, it’s just not something that we can rationalize or that a client wants to pay for.

And so they lose business at the end of the day by taking positions like that. And so I think they need to be cognizant that yeah, sometimes a lower price can be more beneficial and bring in more cases for you, and it’s better in the [00:19:00] long run than trying to charge a ton and then you only get hired on a couple of cases.

Ted: Oh, okay. Interesting. And for the contingency fee arrangement, would you say that price has been like a big issue, or for the most part, experts are reasonable in their pricing compared to what they offer?

Kellie: It varies. It’s because we’re a bigger firm and we’re able to handle some of those costs and pay them upfront. It’s not as much of an issue as I’ve seen in maybe my old firm that was smaller and had other practice areas where clients would’ve been responsible for paying for the expert. But even for some of them, again, I get that they want payment upfront, but it’s not always tenable.

And a lot of their pricing just varies and it’s not always the most consistent across the specialties. And we can get a pretty wide range. And if they have a super great track [00:20:00] record and every single case they’ve testified in there’s been a super multimillion dollar verdict for the plaintiff, sure, we might be able to rationalize it. But they better be keeping those numbers and be able to justify it to us because obviously they deserve to be paid, but sometimes it just doesn’t work out in the amount of experts that we need to hire on cases and the work that needs to be done.

Ted: Yeah. Okay. And we covered some of the things that experts should not do to not get hired. What would you say are some success stories or great stories—of course, without any private information—but what would you say are some success stories you’ve had with experts?

Kellie: Yeah. Obviously, experts that are well-prepared, that have reviewed the records, that know it well, that aren’t constantly having to refer to them or read. Ones that can be personable. I have won cases I probably shouldn’t have just because an expert was personable and they made [00:21:00] the jurors laugh and they showed them that they had some personality.

Obviously, we do that as attorneys as well, and I think it’s an effort as a whole. But obviously, most of these experts are testifying about super nuanced topics that are probably pretty difficult to understand. I have plenty of experts where I don’t—I work with these things and I have no idea what they’re saying half the time.

So being able to talk in layman’s terms, kind of dumb it down, so to speak, for the jurors, for the attorneys, so that people understand what they’re saying. Because they’re there for a reason. We have things that we want to show, and we have to make sure that the jurors understand it. And sometimes in medical terms, things like that, or technology terms, people get lost.

And if they can’t follow, if they can’t understand, it goes right over their head, and all that money and time is wasted because no one understood what that expert was talking about. And then truthful, like I said. I don’t expect them to [00:22:00] take any positions that aren’t backed by science or the truth.

I expect them to be honest about it, and it’s not their job to make my case. It’s my job to present all of it. And so if there’s something in there, obviously in my questioning, I might try to avoid certain things, but at the end of the day, if it comes out on cross, so be it. We can find ways around it.

I don’t ever want anyone to not be truthful or try to come up with some theory that just doesn’t make sense for the purpose of building a narrative.

Ted: Yeah. I’m curious, if you’re able to share, what was that thing that the expert said that the jury laughed?

Kellie: It was on a criminal case and it was about urine results and marijuana. And then he had little tidbits about—in Florida, obviously, FSU and UF have a huge rivalry. So he had little tidbits in there about sports, things like that. But it just made him more personable, more human, that the jurors could relate to him, and it kept their attention.

It broke things up so they were able to [00:23:00] pay attention, and it wasn’t just someone droning on and on about something that they have no idea and can’t understand about.

Ted: Oh, okay. So it would seem like a big deal, or not a big deal, but it seems important if the expert also knows—do they get to know who the jury is or what each person does for their job and things like that?

Kellie: No, it is. The attorneys don’t know until we’re showing up to the trial dates. We pick them and then usually start the trial. So there’s oftentimes not enough time to update them on that. And it doesn’t necessarily need to be super nuanced like, “Hey, I have this person. Draft your testimony to play to them.” But I think just them showing their personality, and not being a robot—it’s okay. You don’t need to be a robot when you’re testifying. You’re allowed to show your personality or crack a joke here and there. Obviously within reason, not the whole time. It’s not a [00:24:00] comedy show.

But I think them showing their personality goes a long way and it helps establish more credibility with the jurors.

Ted: Wow. Really interesting. I think it’s the first time I hear that one, but it makes sense. It makes a lot of sense. Something else an expert had told me is that after every case, they always review everything that happened with the attorney. So they said that’s how they make sure that they keep doing a good job. What are some things that you review with the expert after depo or after trial?

Kellie: So after a trial, I’ve really only had maybe one or two experts even reach out to me to review those things and say, “Hey, is there anything I could have done differently?” or “How’d it go?” Things like that. After depositions, we’ll fine-tune things, but again, at that point their testimony’s on the record. [00:25:00] There’s a record of it. Obviously, at a trial they may not all come out, but it is important to have those conversations. And I think if they want to become a better expert and more well-rounded as a whole, it would benefit them to have those conversations with attorneys.

Ted: Oh, okay. For those experts that didn’t call, do you think maybe they were afraid you were gonna get upset at them or maybe that they did something wrong?

Kellie: I mean, they may not just care what the end result is. They came, they did their job, they testified, and it is what it is after. Or they were busy. I mean, there are plenty of reasons why it could have been. And a lot of times I get it after trial—so much goes into it that they don’t want to revisit it or go back to it, especially if there was an especially brutal defense counsel or something on it.

But I mean, it varies. But I think at least me personally, I’m always happy to have a conversation with someone and kind of let them know if there was anything they could have done better or [00:26:00] thank them for the good work that they do because a lot of times we wouldn’t get to where we get without them.

Ted: Yeah. Okay. I have one last question if that’s okay.

Kellie: Yeah, of course.

Ted: So one expert told me that one time he was getting questioned and that the opposition—the, I think it was a defense attorney or plaintiff—but either way, they were asking the expert questions in a way that it was neither a yes or no question. The question needed more explanation, but the attorney was asking it in a way to make the attorney look good. So do you go over those situations with the experts like, “Hey, if the attorney is asking you a question where he’s insinuating the answer in the question so that you give the answer that he wants,” do you go over how to address those situations with the expert?

Kellie: Not fully. Most of the experts that we worked with have testified [00:27:00] pretty extensively and kind of know how to handle those situations. Obviously, we’re always happy to kind of provide insight if they have it, or obviously I’m never gonna tell an expert what to say or what not to say, things like that.

And sometimes that is the struggle with being a witness, expert or not. I think that’s a trap that us attorneys get any witness into often, depending on where it is. On direct, obviously we’re asking open-ended questions that are meant to elicit a long explanation, things like that.

Whereas on cross-examination, most of the time it’s a yes or no answer that’s warranted. And they’re more kind of affirmative statements. So that’s kind of just the nature of cross-examination. And it’s to pin them down, and I hope they don’t take it personally. That’s our job. That’s how it’s structured and how it’s supposed to be.

But I think keeping your cool and explaining where they can—there, it’s always gonna happen, [00:28:00] and so you just kind of have to get used to handling it and handling it again with your own personality, things like that, because the jurors see it. If I don’t personally believe in being rude to anyone ever—opposing counsel, witness, any of that. I don’t think it’s effective.

But obviously there are attorneys that will be super aggressive, and jurors see that and they will weigh it overall. And I’ve seen trials won and lost because the jurors liked an attorney personally or didn’t like them. Same with witnesses, things like that. And so if they’re aggressive, it’s better off an expert just staying calm and being able to handle it and taking the time to explain.

And even if they don’t, when it’s on redirect, if someone’s doing that to my expert, on redirect I can get back in and give them an opportunity to explain and go more in depth of saying, “Hey, they wanted you to say this. Why do you come to that conclusion?” And give them an opportunity to explain it again on redirect.

Ted: Oh, okay. So there’s a lot of teamwork as well. That’s [00:29:00] awesome. Very interesting. So it sounds like also maybe a case could be won not because the person was right or wrong, but because they went over the jury?

Kellie: Yeah, unfortunately, I—it’s something we have to discuss with clients often when we analyze whether or not to go to trial on cases, and especially on criminal cases we would see it all. But they would poll jurors after, and there’ve been studies done. And jurors have been like, “Yeah, we just really didn’t like their attorney,” or, “We didn’t really like who the defendant was,” if it was a criminal case—the plaintiff on a civil side—”We didn’t like their outfit. We didn’t like this. We didn’t like that. We didn’t find them credible.”

And so a lot of times they’re not always making their decisions based on the law and the facts and the evidence presented, but they’re humans. And unfortunately there’ve been trials won and lost plenty of times just because the jurors didn’t [00:30:00] respond well to an attorney or whoever the client was.

And it’s a hard thing to battle that you can only do so much against.

Ted: Yeah. I’m sure there could be like a whole podcast just to talk about jury psychology.

Kellie: I would love to know after every case all the different information and all their reasons for everything, but unfortunately we’re not allowed to ask usually. So unless a juror just goes up and volunteers that information, we’re often in the dark and we have no idea why they chose the things they did.

And I’ve seen things where I’m like, “There’s no way we’re winning this,” and we won. And there are cases where I’m like, “I have no shot of winning, but we’re gonna try,” and we do. So there’s not—it’s not always the most consistent or predictable, but you try. And certainly the experts help a lot on that.

Ted: Okay, Kelly. Thank you so much for all your insights, for being here, for your time. I appreciate it. I’m sure the expert witness community and other lawyers also watch this as well. So I’m sure [00:31:00] they’re all gonna appreciate it. So thank you so much for being here.

Kellie: Thank you for having me. I hope you have a good one.

Ted: You too.