Using their considerable experience as litigators, Noah and Bill evaluate the opening arguments in the Gwyneth Paltrow skiing accident trial, rate how they think the judge is handling the courtroom, score the results of the trial so far and explain what the "old person" defense is and why it's likely to be used in this trial.
And we've only just begun!
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We interrupt this program to bring you a special report.
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Welcome to I strenuously object. We are here today to kind of jump out ahead of the news for once instead of instead of lagging months behind.
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We are in the middle of the Gwyneth Paltrow ski accident trial and nothing like some premature preliminary thoughts when only parts of the evidence are in to really get you going.
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Before I throw to you know to ask a couple specific questions, just like a 10,000 foot overview of the facts that are in dispute here.
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On a mountain in Utah where Gwyneth Paltrow was skiing and a I guess septuagenarian still at that point.
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Is he an eye doctor? Was also skiing.
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Retired optometrist. Yeah, sorry, I can't even say optometrist.
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No, we're off to a bang up start.
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There was an accident on the ski slopes and the two involved in the skiing accident have very different accounts of basically who ran into whom.
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Just a few safety things to keep in mind. First of all, look straight ahead when you ski. If you look down, you're going to fall. You're going to have a bad time.
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Also be aware of skiers around you. If you run into another skier, your skis are going to cross. You're going to have a bad time.
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The optometrist here is the plaintiff. He alleges that Paltrow came kind of flying down the hill out of control and hit him.
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And it caused him traumatic brain injuries and some broken ribs.
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And he's making allegations that essentially cognitively and in his life he's never been the same since this accident happened.
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With some implications going around as well that the staff at the ski park and everything else were.
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Right out of the gate immediately trying to set it up where it wasn't his where it wasn't her fault, but his presumably based upon her status as a famous celebrity.
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Gwyneth Paltrow, on the other hand, makes allegations that he was behind her.
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Came up on her and made kind of a mild impact kind of directly front to back.
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It's a weird description of events where they kind of join up like softly. He runs into her back.
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She sees skis come up underneath her and hears weird grunting sounds.
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And the two of them kind of ski for some period of time or in some portion of the mountain just adjacent to each other smashed together.
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And then they fall over to the side, at which point, you know, she got up. He said it was her fault.
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She became angry and started shouting at him and then kind of skied away.
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So so some pretty starkly different arguments here or positions here by the two people involved as far as what happened.
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So, you know, I think that's enough to at least make sure if anyone here hasn't been following or isn't aware at all of the lawsuit, what the general broad strokes of this ski accident are.
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And with that, I guess I know I know we watch some opening arguments and I know you have some thoughts on them. So, you know, why don't you tell us what you thought about the opens?
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Yeah. Hey, good morning, Bill. So, you know, a couple of things first.
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This is a very classic personal injury case. Red car, blue car. But it's on a ski slope.
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And they're both blaming each other. And I thought the plaintiff in their opening did a good job of keeping it very short, very simple.
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Said that she heard him and he was harmed for life. You know, the defendants, I thought, did a very poor job.
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I mean, I think they're going to win the case, which we'll get to. But I thought they were too long.
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I thought they talked about the facts and evidence that weren't in the record yet.
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But it may have also been effective in setting the expectations for the jury.
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So, you know, I didn't think either party won the case in the opening and I didn't think they lost the case in the openings. They were sort of average.
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It's interesting. The approaches were really different in the opening as far as, you know, the plaintiff side gave what would be a more traditional opening.
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It was brief. It kind of, you know, gave the jury just a quick taste of what evidence was coming and really focused in on the core of the arguments.
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The defense open was long and involved a lot of kind of specific details and specific evidence that may or may not make it in ultimately.
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You know, I think if you were if you were in a mock trial competition and scoring that opening, way too much of it was objectionable and was making argument or putting in more things that may or may not make it into evidence later
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in a way that would kind of adversely affect your score in that sort of competition.
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But, you know, the judge let most of that in even the times when an objection was sustained.
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It's not as if it was sustained in a way that took it back out of the jury's hearing.
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So I did think it was interesting that really the whole crux of, you know, Gwyneth Paltrow's version of events, all of that got in.
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I also thought it was interesting to me, at least the opening set it up where perhaps the most important piece of evidence here that would exist in this trial has been missing and hasn't been able to be recovered, apparently, which is there are emails talking about GoPro footage of the accident itself.
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And as far as I know, still, though, there was some in chambers discussion that none of us were privy to.
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As far as I know, no one's actually seen this GoPro video and can tell us what it shows.
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I thought it was really effective in defendant's opening to put the email up, which simultaneously had the plaintiff titling the email, I'm famous, as opposed to I'm hurt really badly.
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And then also referenced and had a link to a GoPro video that isn't in evidence and doesn't exist.
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You know, what were your thoughts on that getting in in the open?
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Yeah, I mean, I think it's a judgment call by the judge and this judge, there are umpires and ballgames and this umpire and this judge has let everything in.
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And you know, and the advantage to the judge for that is they don't want to steal the show, but the evidence has been very loose and free, in my opinion.
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I think it's so typically what you would have in a situation like this GoPro video is you would have a whole bunch of pre-trial wrangling over whether or not you would be entitled to what they call a quote unquote adverse inference, where the judge would give an instruction to the jury that says, hey, jury.
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If you find that the plaintiffs here were in possession of this GoPro video and they let it go away or disappear or destroyed it or lost it or whatever, you're not required to, but you are entitled to from that fact alone, decide that whatever was on that video was bad for them.
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So yeah, and just to give some perspective, because we're talking like people to people who have watched it, there's an email the night of the accident from his daughter who says, I can't believe we got this on GoPro, which implies to all of us, there's a video of the accident, but nobody has the video.
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Nobody's and he's stuck. We're only halfway through the trial and he's starting to ask the other daughter. Have you ever seen this video? Did you click this link? I don't remember.
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So yeah, it's pretty interesting piece of evidence missing. And it may well be that some of the reason this is coming in this way is the GoPro footage wouldn't have been from the plaintiff himself, but from the plaintiff's friend who was skiing with him, I gather implicitly.
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Presumably. Yeah, we don't know who it's from. There's one eyewitness who says there was nobody else around and he witnessed it. I mean, the actual false, you would think it was his GoPro, but I don't know.
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Yeah. And so one of the reasons that it may not follow the normal procedure for admitting or getting an adverse inference instruction is if the video wasn't in fact under the control of plaintiff as such, it may not rise to the level where you could get the judge to give that sort of instruction.
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Yeah, that's a deep legal concept, but correct.
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And if that's true, it's interesting to me. I wouldn't let the other if it doesn't rise to the level of adverse inference. I wouldn't if I if I'm the judge, I don't know that I'm comfortable letting essentially the defense team here back door that adverse inference by putting in the video and just letting the jury infer or not infer as they see fit.
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I'm surprised anything about the GoPro video if it isn't around anymore and if it's not either party's fault that it's not around anymore. I'm surprised there's any discussion of it at all.
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So, you know, this is a case that nobody's watching if Gwyneth Paltrow is not involved, right? And instead you have four or five lawyers on each side of in the courtroom making this a TV spectacle.
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But what's your thoughts halfway through? I mean, how are you seeing it? How do you score it?
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I thought it was weird, somewhat atypical strategically, that the plaintiffs called Gwyneth Paltrow so early in the proceedings.
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May call your next witness.
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We'd like to call Gwyneth Paltrow.
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We've now heard her series or her version of the events and we still haven't really heard from the plaintiff himself, right? This eye doctor hasn't taken the stand yet. We don't know exactly what he's going to say.
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But already, if I'm the jury, I've heard in defendants lengthy open a full narrative of what the allegations about how the accident actually occurred are going to be.
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And then I heard it from Gwyneth Paltrow herself. And yeah, to me, it's I don't know. What did you think of the decision to call her so soon?
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So, you know, we talked about the openings and then the plaintiff always goes first in the lawsuit and they sort of need to put together the order of their witnesses in a way that's going to tell a compelling story for the jury.
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And I think the plaintiff's choice of witnesses in how they're telling their story, I thought it made sense to start with the eyewitness. OK, that's a can be a good first witness.
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But they called Gwyneth Paltrow per cross before they called their own client. And and she wasn't good for them.
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I mean, if you if I wanted to tell this case to someone in three seconds, they took a video, they don't have it. Gwyneth Paltrow is believable.
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She didn't do it. And he's telling people I'm famous. Right. Like, I don't know that you need anything other than that.
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It feels like they've made an uphill fight for themselves in the way that they presented the evidence.
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I think you can only call any defendant per cross, but specifically someone like Gwyneth Paltrow.
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You can only call them as a witness before your own plaintiff if you're sure you're going to annihilate them on your examination, if they're going to be unbelievable and like liars.
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And I don't think they did that. She was she was really good in court.
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And if you're ever going to be a witness in court, the power of smiling, because when a witness smiles and they're calm and comfortable, they're more believable.
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And I thought she was awesome as a witness. Now I'm biased, too, I think. Well, and also, look, she's an actress, right?
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If there's anyone who should be able to get up on that stand and put on a quote unquote performance, you know, it's someone with the kind of acting chops she has.
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Now, I don't know how much the jury is going to hold that against her. Right. It's a real wild card here.
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You know, the jury knows who she is, knows that she's, you know, rich and famous and powerful and an actress.
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And I don't know how that's going to affect her credibility on the stand.
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I suspect people are more likely to be a little bit a little bit starstruck than they are to be a little bit extra skeptical.
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But if there's anyone who I thought could take the stand and convince me of a lie, it would be someone whose job is to inhabit characters on the stage. Right.
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Yeah. Yeah. Interesting. I've enjoyed it, I think, more from a legal perspective than an entertainment perspective, but I have enjoyed it.
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I did want to bring up one moment. Well, two of them, actually, that I wanted to address with you here.
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First, during Ms. Paltrow's testimony, the defense attorney who's crossing her is trying to get her to come down from the stand and physically reenact her narrative of events.
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Right. Like the attorney's idea here is I will be my client, Mr. Sanderson, the eye doctor.
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I'll be him and you be you. And let's act this thing out.
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I'm going to stop there. OK. And if the court and Ms. Paltrow, if you don't mind, since, again, when we did this over Zoom, would you mind stepping down and us kind of acting this out a little bit so I could get a good feel?
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Let's see. Can we approach her, Honor? Sure.
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Now, it's one thing to do that with a friendly party. It's a good idea to get your own client down out of the stand to act things out.
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You and I were texting during that particular exchange, and there's no way the judge is going to force her to get down there and physically interact with and play with plaintiff's counsel.
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That's just not a thing that any judge would allow. And of course, he didn't.
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The court doesn't mind if I act it out, correct?
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Yeah, the objection was sustained as requested, but you're welcome to move around the courtroom.
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Wonderful. Thank you. Do you have a microphone?
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What were your thoughts on that exchange?
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Yeah. And once she I thought it was horrible. I thought it was horrible to ask because it's so weird and strange.
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And once the plaintiff's lawyer, who was female, lost that with the court and the court said, no, we're not asking Miss Paltrow to walk down and do this reenactment with you. It rattled the plaintiff's lawyer.
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And I thought the testimony was much better for Paltrow after she got rejected on that.
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But very strange and odd request. I was upset when she asked like, no, my client's not getting out of the stand. You can ask questions.
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Her answers are the evidence. We can describe what happened.
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I also thought it was interesting. The first thing that attorney said, so they go up to sidebar, right?
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And the microphones all cut off and we see all the attorneys talking to the judge and we don't really know what's going on.
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You and I do, right? They're arguing over whether or not this is legitimate.
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Honestly, I was surprised it took more than five seconds at sidebar for the judge to just say, get out of here. You can't do that.
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But the first thing the lawyer says when she gets back to the microphone after the judge rules that she can't make her come down out of the stand.
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OK, Miss Paltrow, so your counsel doesn't want you to come down. So I'm not going to ask you to come down.
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That's inappropriate. The judge sustained the objection. So she shouldn't comment on what I want. It's what the judge wants.
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The objection was sustained.
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She also directly called Gwyneth Paltrow a liar. She is not thinking before she's speaking sometimes. I mean, that's just a fact.
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Well, and look, once you're in a situation like this where I think the evidentiary rulings have been a little bit loose, what the heck, right?
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Like, maybe it makes sense to say that in front of the jury, even though it's obviously objectionable and it should be stricken.
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I would be worried that, you know, and that the judge would not just simply strike my question, but would tear me a new one in front of the jury for having the audacity after an evidentiary ruling to come back and blame defense or blame the other side's counsel, defense counsel in this case, for the evidentiary ruling that just happened.
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Like, that's way out of bounds. But the judge took it in stride and just told her to strike it and move on, which which means it didn't hurt her in any way.
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I don't think to ask that the jury already knew who was trying to do this and who was trying to stop it.
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But man, you know, there was a chance there that the judge really would have lit into her.
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And this judge has been pretty reserved on that front. Very open to letting the players do whatever they want, including making childish remarks to one another consistently throughout the trial, like consistently.
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You have examples of that?
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Well, like what you said there, the other lawyer won't let me or during a question, one of the lawyers will say that's not the correct facts and the judge will have to look at the lawyer and say, is that an objection?
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What are you doing?
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Where they're just making commentary. If you're not the one asking the direct questions, your limited remedy is to say objection and have a basis for the objection.
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And it's just a free for all in that courtroom. It's kind of embarrassing, but it's probably a little bit that this is on national TV.
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Yeah, I mean, there's there's no doubt that the television cameras and the national broadcast affects everybody's performance in this regard.
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Everyone is playing in it like it looks like a courtroom, right?
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It feels like the place that they're familiar, but there are elements of this with cameras in their faces and everything elsewhere.
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You know, they're really in a different venue than the one they're typically comfortable in.
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A quick good idea, bad idea question at the end of defense counsel's opening argument, he pulled a dollar bill out of his pocket and kind of waved it in front of the jury because
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Gwyneth Paltrow has a counterclaim here that she has filed after having been sued and she is claiming one dollar in actual damages.
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Now, there's there's some attorney's fees and the stuff that she's also asking for. You know, I I don't know the like the law on like frivolous litigation in Utah to know whether or not that has any real chance of succeeding.
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Those it's exceedingly difficult to demonstrate that the other side, even if they lose, was engaged in such bad faith conduct that you get your attorney's fees awarded.
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But they're going to try that. But in any case, you know, they're they claim the accident is his fault and Gwyneth Paltrow was hurt, not like severely physically destroyed.
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But, you know, inconvenience, she was inconvenienced, uncomfortable.
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She had physical pain. She couldn't go back out onto the slopes that day.
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You know, she and her family were there and they had paid for a full day of skiing and they only got a half and she did feel physically sore.
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And any time you suffer a physical impact, the argument goes you suffer some amount of injury.
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And in this case, it's it's a dollar. It's what we would call nominal damages.
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Right. The purpose of the dollar is not to compensate you the actual dollar. Who cares?
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It's a buck. But it's to make a finding that the other person was at fault.
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They caused this and they harmed you. And that's why I'm awarding you one dollar.
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I don't know. Good idea, bad idea. Pulling a dollar bill out of your pocket in that context and waving it in front of the jury.
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You know, and I don't know what this is, but I was watching with Steph yesterday and she said that Paltrow actually said, I don't want a dollar anymore.
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I want more. But I did not hear that.
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But if she did, it was brilliant on her part. But the question of putting out the dollar, you know, my feeling was unnecessary.
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It's a big swing when it's not necessary. If your client is believable.
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I mean, I know you're trying to set this picture of principle that this is how not you know, and fighting the fact that she's rich and can probably afford this.
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And why are you fighting this? Just pay them, pay the money. It's a close call. But I would probably say no, I would not have used the dollar.
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Might be more powerful without seeing it. Now you see, I liked it like, look, it's a little bit.
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It felt a little bit hackish in the moment, I grant you. But here we are, you know, three or four days or whatever it is later.
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And I remember that he pulled a dollar out of his pocket. That physical reminder of the existence of the counterclaim and the fact that at the end of the day, they're asking me to award one dollar.
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You know, I thought he talked maybe too much about the dollar after he had it out.
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But as even a bad visual aid is still a visual aid that can really stick with a jury. And I mean, it stuck with me.
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So, you know, would I have liked to come up with something a little better? Maybe, you know, at the time I was I was like, what is he doing?
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Thinking about it now, I think it worked brilliantly. That's so funny because I'm I can hear you telling me fairways and greens.
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We don't need it. And for you to say, yes, I liked it when that's usually would be my place. Pretty funny to me.
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But no, I could definitely see the benefit and could probably be swayed if it's done right. He's a little bit a little bit cooler doing it.
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There were a lot of things about just subtle presentation. I mean, he he was kind of stumbling over his words.
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It's a weird environment, even for a for a skilled attorney to all of a sudden, you know, know that you're going across on live television everywhere.
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So maybe a little bit of a little bit of his kind of stuttering can be forgiven or at least explained.
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I didn't think it was a well presented opening argument. I don't think he came across like the sort of attorney someone with the resources of Gwyneth Paltrow should be hiring.
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But again, maybe that was I think I'm giving too much credit to describe that as potentially intentional.
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But I think it might actually play to her advantage. Right.
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Part of the underlying narrative here, it's implicit, even if not explicit, is she's got the money, the power, the fame, everything else to just kind of bulldoze the plaintiff here.
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And Dr. Sanderson is casting himself as the underdog.
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You know, on some level, if your attorney is too good in that particular context, the jury may end up disregarding it more like, oh, well, look, she paid for the best attorney on Earth.
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You know, let's let's let's kind of get past that and look more at what the little guys say in here.
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So we haven't heard from him yet. We haven't. That's who I really want to hear from.
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I want to see the GoPro if it shows up and I want to hear from him.
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But I am with you as far as my you know, my initial reaction, having heard this is, you know, I've found Gwyneth Paltrow's story pretty credible.
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And I found some of the documentary evidence, the emails, the claims of famous and the missing GoPro all to really, you know, it casts some doubt on the plaintiff story here.
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One one final thing, and I don't I don't think we need to belabor it in any regard.
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But there is, of course, a lot of talk and a lot of the evidence so far has been about damages.
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Now, you don't get to damages if the accident is not Gwyneth Paltrow's fault. It doesn't matter how badly the ski accident did or did not affect Dr.
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Sanderson's life, you know, if the defendant here isn't responsible for those injuries.
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But I do think it's interesting. And we've seen versions of this in a lot of cases where, you know, the defense in that regard is taking a very standard defense, especially against an older plaintiff,
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which is to say these injuries are not caused by the accident. This is just getting old.
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Your memory is going to fail. Your personality is going to change.
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You're going to lose certain abilities and certain certain activities you used to do.
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You're not going to do anymore. And kind of chalking that up to age itself as opposed to the accident.
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I'm an old man. I'm confused. I thought I paid for it. What's my name? Could you take me home?
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I just wanted to flag, you know, and I will take any further input you have on this point, Noah.
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But man, we've seen that defense basically every time your plaintiff is older.
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Yeah, I mean, they're going farther than that. Look, on the damages aspect, the plaintiff's experts, I thought were decent.
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They were highly regard, very experienced medical doctors in a variety of fields that came in and said that this accident caused him some additional type of harm.
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But you don't get there if she wasn't at fault.
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That's right. And if I find if I'm a juror and I find that she was at fault here, I am personally inclined at that point to award pretty significant damages.
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You know, you're running to an old guy on the ski slopes and hasten his, you know, his dotage.
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And I don't know that he's going to come across, you know, like he's old and infirm, you know,
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but a combination of being like, no, you're responsible for what you did to this person.
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And the fact that this person's old doesn't give you carte blanche to give them traumatic brain injuries.
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To me, on the contrary, you know, you take your plaintiff as you find them.
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If you found someone who, because they're older, is more susceptible to this kind of injury, you're still on the hook for that.
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And I might even resent, you know, the defense team for all of the evidence that they're trying to get in about this guy's entire life and his relationship with his children.
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And, you know, I understand they have to do it. And they've been very clear in telling the jury, look, I have to do this.
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We're being sued. I don't want to do this. Still, to me, the finding of fault is everything.
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That said, look, there have been juries who find the sort of arguments on damages to be compelling.
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It is harder to get the jury to decide how much of what he's going through is caused by the ski accident
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and how much of what he's going through is caused just by the fact that, you know, he's aging.
00:24:52,000 --> 00:24:55,000
Well, and the judge let everything in under the sun that he's just a bad guy.
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If he doesn't see his daughters enough, he's fought with his family.
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And a lot of that stuff I just didn't think was relevant, but he allowed it all in.
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So they're saying he's old and he's not a good guy. Don't give him any money, even if you think we're responsible.
00:25:08,000 --> 00:25:12,000
I mean, I thought it was too much on. I didn't think they needed to go that that that big.
00:25:12,000 --> 00:25:18,000
We're not even at halftime yet. And I feel like we're the halftime show studio analysts telling you all about the game that hasn't been played yet.
00:25:18,000 --> 00:25:26,000
And really, it's I think it's more like cricket than football. One side has gone. The other hasn't yet.
00:25:26,000 --> 00:25:33,000
So, you know, it's premature for us to probably diagnose or make full on predictions for the remainder of the trial.
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And hopefully when we get to a result, we can come back with a quick update and diagnose how we landed there.
00:25:38,000 --> 00:25:44,000
So stay tuned for for that follow up episode here.
00:25:44,000 --> 00:25:52,000
But, yeah, everyone, everyone have a good weekend, a good week. And until we speak again.
00:25:52,000 --> 00:25:59,000
All right. Thank you for your time here on I strenuously object a quicker than usual effort from us.
00:25:59,000 --> 00:26:04,000
But we'll make up for it by having a second part of this podcast. Be on the lookout for that in the interim.
00:26:04,000 --> 00:26:13,000
Feel free to visit our website. That's at PGH firm dot com for any and all of your legal needs.
00:26:13,000 --> 00:26:22,000
Contact the team at Flaherty Fardo. We're also on Instagram. That's at I strenuously object podcast.
00:26:22,000 --> 00:26:27,000
I think that's how Instagram works. I apologize if it's not until next time.
00:26:27,000 --> 00:26:34,000
Some parting advice to go slow. We wedge our skis together in the shape of a slice of pizza.
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Then to go faster, we put them parallel like french fries.
00:26:41,000 --> 00:26:46,000
OK, you see what he did? He french fried when he should have pizza french fry when you pizza.
00:26:46,000 --> 00:27:15,000
You're going to have a bad time. Noah, are we adjourned? We are adjourned.
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