Outside of my law firm itself, NATA is the most important and impactful organization I’ve been a part of as an attorney. My last president’s message touched on the three positive influences NATA has on my everyday practice: (1) Community, (2) Education, and (3) Advocacy. During the upcoming NATA Summer Meetings, we plan to evaluate each of those areas and evaluate ways to improve.
This message is to serve as a primer for attendees ahead of the conversation in Chicago. This message also serves as an invitation to those that cannot attend to submit your thoughts ahead of time so that we can incorporate them as part of the conversation. I don’t have any inflated expectations for what we are seeking to accomplish in Chicago from July 9th to 12th. We are not attempting to alter NATA’s trajectory or re-evaluate the core tenants of our organization. If we can come out of the summer meetings with a few select concepts that each have the chance to make NATA a little more beneficial for our members we will have accomplished our goal.
FOR YOUR MUSING
Heading into our little “strategic planning session” I’d encourage each reader to consider the various efforts NATA has made related to community, education, and advocacy. Please give some thought as to how you would rate NATA with respect to each. As we work through analyzing NATA’s various purposes and related activities, I’m trying to fit activities into one of four buckets:
1. NATA does an activity well and NATA members get significant value from it.
2. NATA does an activity well, but NATA members do not see much benefit from it.
3. NATA needs to improve on an activity and, if improved, NATA members would see significant value.
4. NATA needs to improve on an activity, but NATA members would see little value even if done perfectly.
So take one example to help spur the conversation – the NATA Listserve. If I were asked which of the above buckets the Listserve fell into 10 years ago, I’d unquestionably say Bucket #1. The Listserve was something NATA did well and something I derived great value from. Asked that same question today and my honest answer is now Bucket #3. My honest assessment is that the NATA Listserve has fallen behind the times, but with some tweaking, could regain more value for each members. How do we do that? That’s the conversation we’d like to engage in while in Chicago.
2
PRESIDENT
Mark Richardson, Lincoln
PRESIDENT ELECT
Jennifer Turco Meyer, Omaha
SECRETARY
Elizabeth Govaerts, Lincoln
TREASURER
Cameron Guenzel, Lincoln
IMMEDIATE PAST PRESIDENT
Jonathan Urbom, Lincoln
Board Oversight Chair
Peter C. Wegman, Lincoln
NATA PAC Chair
Matt Lathrop, Omaha
DIRECTORS
Jason G. Ausman, Omaha
James C. Bocott, North Platte
Aaron Brown, Omaha
Eric Brown, Lincoln
Nathan Bruner, Kearney
John F. Carroll, Omaha
Gregory Coffey, Lincoln
Patrick Cooper, Omaha
Michael F. Coyle, Omaha
Tara DeCamp, Omaha
Joseph Dowding, Lincoln
Michelle Epstein, Omaha
Erin Fox, Omaha
Nancy Freburg, Kearney
Daniel Friedman, Lincoln
Mandy Gruhlkey, Omaha
Matthew Knowles, Omaha
Steven M. Lathrop, Omaha
Mandy L. Larson, Papillion
Danny Leavitt, Omaha
Kyle Long, Scottsbluff
Clarence Mock, Oakland
Robert R. Moodie, Lincoln
George H. Moyer, Jr., Madison
Michael Moyer, Madison
Kathleen M. Neary, Lincoln
Brody Ockander, Lincoln
Robert G. Pahlke, Scottsbluff
James Paloucek, North Platte
Ross Pesek, Omaha
Vincent M. Powers, Lincoln
Jeffrey Putnam, Omaha
Jon Rehm, Lincoln
Julie Shipman-Burns, Lincoln
Andrew D. Sibbernsen, Omaha
Terry Sibbernsen, Omaha
Mitchell Stehlik, Grand Island
Adam Tabor, Omaha
Julie Tabor, Omaha
Dan Thayer, Grand Island
Christopher P. Welsh, Omaha
Brock Wurl, North Platte
Executive Director
Deborah Neary
ASSOCIATE Director
Jane Jones
Now take that example assessment and apply it to an assortment of other NATA activities. A non-exhaustive list might include:
COMMUNITY
• The Listserve
• Social Functions
• Summer Meetings
• Involvement w/other organizations
EDUCATION
• In-person Seminars
• Webinars
• The Listserve
• NATA’s Trial Manual
ADVOCACY
• Lobbyists’ Marching Orders
• In-Session Strategy
• Out-of-Session Strategy
• Legislative Priorities
Again, this is all intended to be preamble. We are just trying to plant the seeds for a fruitful conversation during the summer meetings. If you are planning on attending, first, thank you! If you cannot be there in person, please consider joining the conversation in real time via Zoom. If you can join the meetings, then no further action is requested beyond “give this some thought” before the meetings begin.
If you are unable to attend, then I am asking to consider sending me an email or giving me a phone call to share any specific thoughts you have on how NATA can improve in the near future.
As always, I’m sincerely appreciative of everyone’s efforts and I look forward to a productive and positive conversation in Chicago. The primary purpose for my efforts with NATA has always been to ensure the organization can be as valuable to other Nebraska attorneys as it has been for me.
Mark Richardson, President
editor
Deborah Neary
Nebraska Association of Trial Attorneys 6173 Center Street Omaha, NE 68106 402-435-5526
designer Heidi Mihelich cre8ivenergy
The Prairie Barrister is published quarterly by the Nebraska Association of Trial Attorneys. Inquiries regarding submission of articles and advertising should be directed to Deborah Neary, Executive Director.
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From developing themes to understanding juror biases, “big data” analytics can help position your client’s case for a strong start at trial.
By || Richard Jenson, Jarod Jenson, and Jill Holmquist
DATA FRONTIER S
ignificant advances in technology in recent history are resulting in vast amounts of information being generated and stored every second from a wide range of sources such as social media, sensors, mobile devices, and the general Internet of Things. This proliferating information is known as “big data.” Big data can be defined as “extremely large and complex datasets that cannot be easily managed or analyzed using traditional data processing methods.”1 “It typically involves the collection, storage, and analysis of massive volumes of information to uncover valuable insights and patterns.”2
Although the term “big data” has only come into use in the last three decades for describing these datasets, its collection began in the 1960s and 1970s with market research firms focusing on consumers’ habits. 3 For decades, these firms and political organizations have been surveying voters, collecting data, and then interpreting that data to glean voter insights.4 This data has now become so detailed that political consultants can predict how people are going to vote with high accuracy and can microtarget likely and persuadable voters via online ads, phone calls, or even in-person visits.5
Today, a huge variety of entities amass information using data mining (analyzing new or existing large databases) and web scraping (extracting information from the internet) 6 for a range of purposes, from improving products and services to monitoring for fraud and compliance. 7 It is used by private companies and government offices in areas such as banking, health care, education, transportation, and logistics, just to name a few.8
Big data can be incorporated in plaintiffs’ cases in several ways. It can be used to make cost and outcome predictions based on past cases9; analyze court records and dockets10; and detect patterns in the behavior of judges, opposing counsel, and experts.11
Analytics can be used to extract critical insights from data, leveraging advanced technologies such as natural language processing, machine learning, and large language models (LLMs).12 They are used to analyze and query discovery materials in one case or across
multiple cases. This is particularly helpful in class actions and mass tort litigation with thousands of people bringing cases against the same entity. Depositions, trial transcripts, and other similar materials are excellent sources for big data analytics.
You can apply this technology to trials as well. Use big data analytics in the pretrial research phase, while developing questions for potential jurors, and in the process of juror “deselection” during voir dire.
Let’s delve into some specific ways plaintiff attorneys can use big data.
Big Data and Focus Groups
Focus groups often provide insights on juror decision-making that influence approaches to case strategy and yield concepts and language that can help you develop persuasive trial themes. Big data analytics can improve the process of identifying focus group participants’ influences, insightful comments, and important concepts related to a case.
New products and add-ons to existing software can extract language and themes that participants use when discussing a case. Software with these capabilities (currently or coming soon) include Zoom AI Companion, Dropbox AI, and Microsoft Copilot for Microsoft products, among others.
Vendors focused on the legal industry, such as LexisNexis and Westlaw, are also adding tools that leverage their voluminous legal repositories and AI with features like summarization and contextual searching to provide insights on collected data. While vendors may not advertise these features specifically for focus groups, they can be tremendous time savers.
You can use big data to investigate focus group participants to understand the attitudes that may affect a jury’s decision-making process. The data can show respondent voting behavior, work history, or social attitudes that often translate to decision-making. Big data can also be used to gather insights
Big data can be used to gather insights about participants’ beliefs, values, and decision-making processes.
about participants’ beliefs, values, and decision-making processes across multiple focus group research projects. Many companies provide juror research services using information from public sources and social media to build juror profiles. You can use these same services for participants in pretrial focus groups.
Big Data and Surveys
Surveys involve much larger groups of respondents than are feasible for in-person focus groups and, as a result, provide more statistically reliable data. Attorneys frequently use traditional surveys to support change-in-venue motions, but these surveys also help support, confirm (or disconfirm), and improve focus group, online, and database research. They generally include attitudinal questions, including those related to the respondents’ opinions of lawsuits and lawyers, in addition to their opinions of the parties and specific case issues.
The questions may be asked during in-person interviews, by telephone, or via the internet. The calls or internet invitations are carefully curated so only respondents selected randomly or by quota may respond. The survey results are then entered into a database or other construct and analyzed using statistical programs.
In recent years, online “case surveys” that combine traditional focus grouplike features with the greater statistical reliability of surveys have become more common. These case surveys do
not usually include group interactions. Instead, respondents are asked to review written case descriptions along with images and videos to supplement the description. The descriptions include pseudonyms and other replacements for non-critical factors (such as changing the location when it is not a factor).
Respondents are asked how different sets of facts would affect their verdicts and damages, and why. By analyzing the trends found in large amounts of data from case surveys, consultants and trial lawyers can refine case presentations. Attorneys can often use common programs such as Excel to sort and filter information from surveys on their own to glean useful information.
Big Data in Jury Selection
Big data on prospective jurors can include neighborhood demographics, views about social or political issues, and personal interests. When there is a relationship between these factors, it can be critical information to better understand. For example, you might learn that people from certain socioeconomic levels tend to find more often for the plaintiff or the defendant.
It is important to know that using some characteristics in jury selection could violate Batson v. Kentucky, the U.S. Supreme Court decision that prohibits exercising peremptory challenges on jurors based on their race or ethnicity and sex.13 Be aware of Batson progeny and court rules in your jurisdiction, which may modify Batson procedures. You must avoid using prohibited characteristics as a basis for striking jurors, and you need to be on the alert for improper strikes by the defense.14
Revealing unexpected correlations and juror attitudes. Based on our experience, big data research has shown that certain attitudes about lawsuits, lawyers, corporations, and other matters correlate with anti-plaintiff sentiment.
Analysis of this data often reveals top-level correlations between verdicts or damages and attitudes or beliefs that seem to be unrelated to the case at hand.
For example, potential jurors’ membership in a labor union or approval of labor unions could be relevant to the verdict in a case that does not involve labor unions. Military service could affect opinions in a case that has no apparent relationship to military service. Views about conforming to the letter of the law can predict preferences for one litigant over another.
These correlations gleaned from big data don’t just help to identify relevant juror characteristics; they can also shed light on critical topics to address during jury selection to uncover these characteristics about prospective jurors. Compiling individual juror profiles. The individual juror profile is a more recent development. This is information specific to each prospective juror, not simply a list of characteristics of the least and most favorable jurors. This information is available because big data is collecting more information on individuals, more companies are selling data to one another to create richer profiles on people, and websites and apps that access huge databases have made it possible to access this data online in seconds.
Several companies specialize in creating juror profiles by combining information from a number of these online resources. Use your favorite search engine with terms such as “juror profiles” and “juror analytics” to find these providers.
It is imperative that the creation of juror profiles does not run afoul of state professional rules of conduct15 and ABA Formal Opinion 466 16 by providing more than a passive view of the juror’s online profile. Most of these profiling companies use private interfaces that conform to the requirements of ethics
Advances in AI
and the advent of LLMs allow lay users to analyze vast amounts of data.
rules and the guidelines established in Opinion 466 to retrieve this information. Ask potential profile providers about their guidelines and policies to ensure they are compliant.
Information on individual jurors that you can obtain from big data sources includes: occupation; socioeconomic status; data drawn from public records, such as criminal or bankruptcy records; political leanings and party affiliation; and information drawn from social media posts.
This information can allow you to discover hidden risks, biases, and potential leaders on the jury panel combine a wealth of public and social data with AI insights and analysis to discover information jurors are not likely to disclose gain deeper insights into jurors and experts, refine courtroom strategy, and make better decisions regarding the jury obtain key insights into a juror’s personality, opinions, and worldview.
The greatest advantage of big data is accessing databases with massive amounts of consumer or political data. Juror profiles developed from political databases are especially helpful. These are typically proprietary, so, ordinarily, you must work with the vendor or litigation data firm to access the information.
If an external vendor is not an option, articles about how demographics or attitudes can affect juror behavior provide guidance, with recommendations on how to find this
information online. Minimally, a social media search using as much information as is known about a particular juror can provide insights, but resolving name collisions with common names can be a tedious process with a large venire.
Big Data and State-of-the-Art Technologies
The task of working with big data is an untenable process for the average user. However, advances in AI and the advent of LLMs, commonly accessed through generative pretrained transformers (GPTs), allow lay users to analyze vast amounts of data. These models use natural language through prompts to make sense of the data collected from focus groups, surveys, juror research, and more.
The barrier to entry for leveraging the powerful features available with LLMs is exponentially lower than with traditional analysis techniques. Most people have heard the terms “generative AI” or “chatbot,” and these chatbots are front ends to LLMs that allow a user to ask a question in natural language and receive a natural language response that reads as easily as the article you are reading now. In other words, a user can present a chatbot with data and a task and receive actionable information. In this context, the big data component is the LLM and its vast training base that allows it to interpret our much smaller datasets.
LLMs also have the potential to dramatically simplify the work necessary to use unstructured data as opposed to the more common
structured format of information. Structured data exists in a well-known, table-friendly format (spreadsheets) while unstructured data is more abstract. For instance, an address can be in a structured data format that has predefined fields such as name, street number, and street name. Unstructured data could be the response to: “Describe your home’s location.” That open-ended wording might generate replies ranging from very specific GPS coordinates to something as generic as “on a heavily wooded cul-de-sac overlooking a lake.”
The lack of a forced format results in the response being considered unstructured, and this is especially important for attorneys analyzing big data since the information received in the course of litigation will contain more unstructured data than structured data.
The real work for attorneys as users of chatbots is in crafting good prompts to extract the necessary information without compromising veracity or value. 17 Use the search term “prompt engineering” to find extensive guides that cover the topic. One of the newer prompting techniques involves asking the chatbot to assume a persona. This technique can improve the chatbot’s responses as it acts as a hint of sorts to further guardrail the chatbot to responses applicable to the persona.
For example, the prompt “please review the attached documents and recommend potential themes for the case” might generate theme ideas that would undermine your client’s case. The prompt “act as a plaintiff personal injury attorney who practices in Texas, and please review the attached documents and recommend potential themes for the case” should elicit more appropriate suggestions for a plaintiff attorney.
Once you begin to master the art of prompting, the amount of data you can analyze increases dramatically. As a result, the number of participants in
focus groups or the length of a survey can increase and gather more information— for example, a prompt created for 20 participants will likely work unmodified for 2,000 participants.
Chatbots can also generate questions that you can use for focus groups, surveys, and jury selection. Unlike using AI to create documents such as briefs or motions that could contain misleading or inaccurate information,18 AI chatbots are well-suited to formulating questions for collecting potential juror information. While you may struggle to come up with dozens of relevant questions, a chatbot can provide hundreds of potential questions in mere seconds. Not all will be appropriate for a specific case, but they provide a starting point and keep you from having to search furiously through a personal trove of potential questions.
Many chatbots have been trained on data collected from the internet that includes discussions on topics relevant to upcoming trials. After the verdict in a high-profile or significant case, it is not uncommon for the public to make its thoughts known on social media. The questions that people pose online to their followers or the commentary they post on social media detailing their views about why a case was decided the way it was can serve as source material (referred to as “training data”) for AI chatbots to utilize when generating questions for potential jurors.
For example, the Meta Llama LLM19 is trained extensively with content from its various properties such as Facebook and Instagram, which allows derivative tools created based on Meta’s LLM to generate content using information from user posts.20
New LLMs (or updates) are being published all the time, and it’s important to understand what data they were trained with and any specific customizations. In addition to chatbots based on Llama, other LLMs will likely
to be useful to trial lawyers. Claude,21 by Anthropic, is well-known for its ability to handle scientific and technical data. Gemini,22 by Google, is adept at working with non-text data like images and audio. Mistral,23 by Mistral AI, is specialized to follow instructions and is currently considered one of the fastest to generate its first output token after prompting.24
GPT-4, 25 by OpenAI, is the most popular general-purpose LLM 26 and has a rich community developing tools based on its chatbot, ChatGPT. The chatbot may have a different name than the LLM, such as GPT-4 and ChatGPT, so it is important to look at the model being used by the chatbot.
AI technology has the ability to be a significant instrument of change when it comes to repositories of juror information. However, the introduction of AI into our workflows does not make AI the hammer and every problem a nail. There are articles that discuss, in great length, the various pitfalls that dot the AI landscape in its current state, such as hallucinations, 27 violations of confidentiality and privacy regulations,28 and inadvertently biased results. 29 The limitations of this technology are something every trial lawyer must keep in mind.
The use of big data—through traditional techniques and AI—has brought juror research into a new era of insight and predictive capabilities. It is a powerful tool that can significantly enhance the chances of plaintiffs prevailing at trial and holding wrongdoers accountable.
Timbre Solutions, Inc., in Dallas-Fort Worth, Texas. Jill Holmquist is president of Forensic Anthropology, Inc., in Lincoln, Neb. They can be reached at rajenson@aol.com, jarod@ timbre.solutions, and jill@fai-insight. com, respectively. The views expressed in this article are the authors’ and do not constitute an endorsement of any product or service by AAJ or Trial.
Notes
1. Danny Tobey et al., The Rise of Big Data: Legal Challenges Raised by Artificial Intelligence and Other Data Science Trends, Life Sciences Summit, Oct. 4, 2023, 2, https://tinyurl.com/wkpc95v4.
2. Id.
3. Sherry Tiao, What Is Big Data?, Oracle, Mar. 11, 2024, https://www.oracle.com/ big-data/what-is-big-data/.
4. Id.
5. Microtargeting means “to direct tailored advertisements, political messages, etc., at (people) based on detailed information about them (such as what they buy, watch, or respond to on a website).” Microtarget, Merriam-Webster, https:// www.merriam-webster.com/dictionary/ microtarget; Case Study: Profiling and Elections—How Political Campaigns Know Our Deepest Secrets, Privacy Int’l, Aug. 30, 2017, https://privacyinternational.org/ case-study/763/case-study-profiling-andelections-how-political-campaigns-knowour-deepest-secrets.
6. Understanding Big Data Collection, Inst. of Data, Aug. 28, 2023, https://www. institutedata.com/us/blog/understandingbig-data-collection/. (Note that web scraping raises legal and ethical issues and includes compliance with websites’ terms of service and regulatory protections for individual users.)
7. Tiao, supra note 3.
8. How Big Data Is Transforming Industries in Big Ways, 3 Pillar Global, July 7, 2024, https://www.3pillarglobal.com/insights/ how-big-data-is-transforming-industriesin-big-ways/.
9. Nan L. Grube, Data Analytics and Artificial Intelligence in Litigation, 78(1) The Mo. Bar (Feb. 8, 2022), https:// news.mobar.org/data-analytics-andartificial-intelligence-in-litigation/; 5 Ways Big Data Is Being Used in the Legal Profession, Analytics Insight, July 11, 2022, https://www.analyticsinsight.
Richard Jenson is president of Jenson Research and Communications in Austin, Texas. Jarod Jenson is CEO of
10. Litigation Analytics: The Types of Data You Need in Court, LexisNexis Insights, May 17, 2023, https://www. lexisnexis.com/community/insights/ legal/b/thought-leadership/posts/ taking-analytics-to-court.
11. Id.
12. For more on artificial intelligence coverage in Trial in general, see the June 2024 issue.
13. Batson v. Kentucky, 476 U.S. 79 (1986).
14. We note that Arizona has abolished peremptory challenges altogether. Ariz. R. Crim. P. 18.4 and 18.5; Ariz. R. Civ. P. 47(e).
15. Various bar associations have also provided opinions about the ethics of juror research. See, e.g., D.C. Bar Ethics Op. 371 (2016), https://www.dcbar.org/ for-lawyers/legal-ethics/ethics-opinions210-present/ethics-opinion-371; N.Y. City Bar Ass’n Formal Op. 2012-2: Jury Research and Social Media (2012), https:// www.nycbar.org/reports/formal-opinion2012-2-jury-research-and-social-media/
16. ABA Formal Op. 466 (2014).
17. For more on LLMs, see Alex Freeburg & Erik Dahl, Large Language Model Fundamentals, Trial, Mar. 2024, at 46.
18. John Russell, Sanctions Ordered for Lawyers Who Relied on ChatGPT Artificial Intelligence to Prepare Court Brief, Courthouse News Serv., June 22, 2023, https://www.courthousenews.com/ sanctions-ordered-for-lawyers-who-reliedon-chatgpt-artificial-intelligence-toprepare-court-brief/.
19. Meta Llama 3, https://llama.meta.com/ llama3/.
20. Katie Paul, Meta’s New AI Assistant Trained on Public Facebook and Instagram Posts, Reuters, Sept. 28, 2023, https:// www.reuters.com/technology/metasnew-ai-chatbot-trained-public-facebookinstagram-posts-2023-09-28/.
26. Generative AI Top 150: The World’s Most Used AI Tools (Feb. 2024), FlexOS, https://www.flexos.work/learn/ generative-ai-top-150
27. Matthew Dahl et al., Hallucinating Law: Legal Mistakes With Large Language Models Are Pervasive, Stanford Univ., Human-Centered Artificial Intelligence, Jan. 11, 2024, https://hai.stanford.edu/ news/hallucinating-law-legal-mistakeslarge-language-models-are-pervasive.
28. Joanne Byron, Part 4: AI and HIPAA Privacy Concerns, Am. Inst. of Healthcare Compliance, https://aihc-assn.org/ ai-and-hipaa-privacy-concerns/.
29. Siladitya Ray, Google CEO Says Gemini AI’s ‘Unacceptable’ Responses Offended Users and Showed Bias, Forbes, Feb. 28, 2024, https://www.forbes.com/ sites/siladityaray/2024/02/28/ google-ceo-says-gemini-aisunacceptable-responses-offended-usersand-showed-bias/?sh=f448e8811032.
NATa PAC by
Matt Lathrop
Our Clients Are Counting On Us
It’s no secret to anyone reading this that our clients’ rights are under attack. In the 2025 legislative session, we’ve seen a renewed push for so-called “tort reform” measures—efforts designed to close the courthouse doors, cap damages, emasculate juries, and tilt the scales in favor of powerful corporate and insurance interests. As you have read, in previous issues of The Prairie Barrister, these proposals are not abstract. They are specific, targeted assaults on the ability of real Nebraskans to hold wrongdoers accountable and to seek full and fair compensation for the harms they have suffered.
That’s why the work of the NATA Political Action Committee (NATA PAC) is more important than ever. We are the political voice of our clients and our profession in the Unicameral. But that voice only carries as far as we can amplify it. That means fundraising. That means organizing. And, that means building relationships with future lawmakers—before they even become candidates.
On June 4, the PAC will hold a fundraising phone drive. Our goal is simple: reach out to NATA members and ask them to commit to monthly contributions that reflect just how high the stakes are. If the PAC is not a priority for us, how can we expect it to be a priority for those who hold power? We urge you to take that call, or better yet, reach out now and pledge your support. Monthly contributions—whether $50, $100 or $200— allow us to plan strategically and support champions of civil justice when it matters most.
We are also deep into recruiting season. The 2026 legislative races are taking shape now, and the PAC is actively looking for individuals who may be considering a run for the Nebraska Legislature. If you know someone—even if they’re just testing the waters—please connect them with us. We’re ready to meet, answer questions, and share what it means to be a candidate who supports the rights of injured people and working families.
Importantly, we do not care whether a candidate is a Republican or a Democrat. We are not here to police litmus tests on political or social issues. We are singularly focused on NATA’s mission: defending the civil justice system and supporting those who will stand up for our clients in the Legislature.
These are the Legislative District (LD) seats that will be open, due to term limits, in the 2026 election: LD2 Sen. Clements; LD8 Hunt; LD10 DeBoer; LD14 Arch; LD16 Ben Hansen; LD22 Moser; LD30 Dorn; LD32 Brandt; and LD38 Murman. A map of the LDs can be found on the Unicameral website, if you need to determine the LD where you live.
This is our moment to act. The forces pushing for tort reform are organized, well-funded, and persistent. But they do not represent the people of Nebraska—and they do not represent us. The NATA PAC is your tool to push back. Let’s use it..
CONTRIBUTORS NATA PAC is the political arm of the Nebraska Association of Trial Attorneys. It was established as a vehicle by which Nebraska trial lawyers could encourage and support candidates for public office who believe in ensuring the rights of the citizens of Nebraska by preserving the advocacy system.
THANKS to our newest PAC Donor: Berry Law Firm! And to all of NATA PAC’s continued supporters: $20,000 AND
Atwood Law P.C., L.L.O.
Ausman Law Firm, Omaha
Berry Law, Omaha
Dowd & Corrigan LLC, Omaha
Dowding, Dowding, & Dowding Law Offices, Lincoln
Hauptman O’Brien Wolf & Lathrop, P.C., Omaha
Inserra Kelley Cooper Sewell, Omaha
Knowles Law Firm, Omaha
Matt Lathrop, Omaha
Paloucek, Herman & Wurl Law, North Platte
Sibbernsen Law Firm, P.C., Omaha
Welsh & Welsh, P.C., L.L.O., Omaha
$3,600 - $4,799
James Cada, Lincoln
Chaloupka Law LLC, Scottsbluff
James R. Harris, Lincoln
Harris & Associates, P.C., L.L.O, Omaha
$2,400 -$3,599
Abboud Law Firm, Omaha
James C. Bocott, North Platte
Mandy L. Larson, Papillion
William D. Andres, Omaha
Todd D. Bennett, Lincoln
Aaron Brown Injury Law, Omaha
Eric R. Chandler, Omaha
Timothy R. Engler, Lincoln
Gallner & Pattermann, P.C., Council Bluffs, IA
Elizabeth Govaerts, Lincoln
Cameron E. Guenzel, Lincoln
Steven H. Howard, Omaha
Danny Leavitt, Omaha
Robert R. Moodie, Lincoln
Monzon Guerra & Associates, Lincoln
Kathleen M. Neary, Lincoln
CONTRIBUTORS
Jordan Adam, Omaha
Dan Augustyn, Lincoln
John W. Ballew, Lincoln
Robert Bartle Lincoln
Scot M. Bonnesen, Omaha
Jonathan R. Brandt, Kearney
Tony J. Brock, Lincoln
Bruce H. Brodkey, Omaha
Burnett Wilson Law LLP, Omaha
Charles W. Campbell, York
Gregory R. Coffey, Lincoln
Sam Colwell, Lincoln
Conway, Pauley & Johnson, P.C., Hastings
Michael F. Coyle, Omaha
Thomas H. Dahlk, Omaha
James V. Duncan, Broken Bow
Fiedler Law Firm P.L.C., Omaha
John C. Fowles, Lincoln
Frederick D. Franklin, Omaha
Jason P. Galindo, Lincoln
Gregory A. Greder, Lincoln
Mandy Gruhlkey, Omaha
Mark R. Richardson,
Peter C. Wegman,
Brody J. Ockander, Lincoln
Robert G. Pahlke, Scottsbluff
Vincent M. Powers, Lincoln
Jeff Putnam, Omaha
Jon Rehm, Lincoln
Shayla Reed, Omaha
Rensch & Rensch Law, PC, LLO, Omaha
Stephen A. Sael, Lincoln
Terry J. Salerno, Omaha
Julie Shipman-Burns, Lincoln
Audrey R. Svane, Lincoln
Dan Thayer, Grand Island
Jennifer Turco Meyer, Omaha
Amy L. Van Horne, Omaha
James D. Hamilton, Lincoln
David M. Handley, Lincoln
Eugene L. Hillman, Omaha
Bell Island, Gering
Nicholas Jantzen, Lincoln
Christopher D. Jerram, Omaha
Jeffery Kirkpatrick, Lincoln
Lee S. Loudon, Lincoln
Tod A. McKeone, Lexington
Clarence E. Mock, Oakland
Michael G. Mullin, Omaha
Ross Pesek, Omaha
James J. Regan, Omaha
Brianne Rohner Erickson, Lincoln
Matt Saathoff, Omaha
Richard J. Schicker, Omaha
Van A. Schroeder, Bellevue
Robert W. Shively, Lincoln
Paul M. Smith, Omaha
Jacob M. Steinkemper, Omaha
Amy L. VanHorne, Omaha
Timothy Wollmer, David City
Friedman Law Offices, Lincoln
Lincoln
Lincoln
GEORGE W. NORRIS WILLIAM
by Vince Powers
BLUE CROSS AND BLUE SHIELD OF NEBRASKA. INC. V. DAILEY
I have gotten an increasing number of phone calls from lawyers asking about the Dailey decision. The key is that health insurance companies do not have an automatic lien on their customer’s settlements. The burden is on the company to prove that their customer was made whole before their right of subrogation exists. A plaintiff’s lawyer should cooperate with the company by providing all the health care records, bills, liability facts and other relevant information.
Years ago, the Nebraska Supreme Court in Blue Cross and Blue Shield of Nebraska. Inc. v. Dailey, 268 Neb. 733, 687 N.W.2d 689 (2004) adopted the holding of the Wisconsin Supreme Court in Rimes v. State Farm Mut. Auto. Ins. Co., 316 N.W.2d 348, 350 (1982), wherein an insurer was attempting to enforce a subrogation provision which stated:
Upon payment, the company shall be subrogated to the extent of such payment to the proceeds of any settlement or judgment that may result from the exercise of any rights of recovery which the injured person may have against any person and such other person shall execute and deliver instruments and papers and do whatever else is necessary to secure such rights.
(emphasis omitted) The Court stated: “[O]ne who claims subrogation rights, whether under the aegis of either legal or conventional subrogation, is barred from any recovery unless the insured is made whole.”
ID. AT 316 N.W2D AT 353.
The Nebraska Supreme Court in adopting the “Made Whole Doctrine” held that:
“Under the terms of the policy, it is possibly for a loss to be borne by the insured, not the insured despite the fact that the insured has paid the insurer to bare the risk of such a loss.”
The dissent set forth the practical reality that should guide Nebraska lawyers in resolving these issues:
“As I understand the reasoning of the majority, if an injured party settles for 99% of full compensation of subrogated health insurance carrier could recover nothing from the settlement and its rights against the tort-feasor would be extinguished.”
THE NEBRASKA SUPREME COURT WAS FACED WITH TWO VERY DIFFERENT OUTCOMES.
On the one hand, an injured person’s right to recovery could be overwritten by contract language in a healthcare plan which is neither negotiated in the workplace or at home. Consumers are offered health insurance on a take it or leave it basis. The other alternative is that the injured victim could be compensated while the insurance company, which is in the business of selling insurance and is aware of the risk, would not be reimbursed unless the injured person is first made 100% whole.
The Nebraska Supreme Court wisely applied its common sense in finding that the risk should be borne by the corporation, which sells the insurance, borne not by the consumer.
It is important to understand that this discussion does not involve any ERISA plans. This ruling affects only insurance plans covered by state law.
In interpreting the practical result of Dailey, it is helpful to remember the facts of the case, Dailey received a lump sum settlement of $1,225,000 plus $10,000 per month for 10 years or the remainder of his life. Further, the railroad agreed “that if Blue Cross is subrogated any rights whatsoever against Dailey then Union Pacific would negotiate the subrogation lien of Blue Cross and pay all costs and attorney fees incurred by Dailey. Blue Cross had paid $794,329. in medical expenses under an insurance contract with the Nebraska Association of County Officials that covered Dailey.
The reality is that few plaintiffs are “made whole”. Most every case is a compromise settlement. The growth of the mediation practice in Nebraska is overwhelming evidence that most parties prefer a settlement even though it is less than what could be achieved by a jury but is also more than what a jury may award.
It is the risk of the unknown that drives settlements in lawsuits. That risk will never go away.
Every lawyer reading this paper routinely informs his or her client that, “if you go to trial you could get more, you could get less or you could get nothing.” The Federal Court in McKinney v. Philadelphia Housing Authority, Civil Action No. 07- 4432 (E.D. Pa. Aug. 24, 2010) explained why plaintiffs often are forced to take less money than would make them whole rather than take the risk of going to Court.
Settlement, by its very nature, involves compromise. In legal system where outcomes are uncertain, parties settle to hedge against the risk of an unfavorable outcome. DPW’s proposed rule amounts to a “heads l win, tails you lose” scenario. “... When parties settle, everyone sacrifices.”
DPW’s suggestion that it does not need sacrifice, ( ...) ignores this reality.
DPW’s argument, Judge Schiller said, ignore the fact that the plaintiff “traded away some of its recovery prospects for certainty (and cash) via a settlement” and would hold and would result that DPW “would reap the benefits without giving up anything.”
Despite the overwhelming evidence that when a case is settled and the plaintiff is not “made whole”, some health carriers routinely demand two-thirds of their subrogation amount.
Pre Dailey, the common practice in Nebraska was that the health insurance carrier would pay an amount equal to the contingency fee of the plaintiff’s counsel, usually one-third.
Post Dailey, some health insurance companies have attempted to reduce the attorney’s fees paid, as bizarre as that may sound, and request 75% as subrogation.
Should you encounter such a healthcare provider who has a laser-like focus on attorney’s fees, you should immediately recognize that this corporation is attempting to create more work for the practitioner in the hope that the attorney will then enter into negotiations to just be done with the matter. The lawyer should ask for two checks. You do not want to delay the settlement itself, and the liability carrier which wants a release will send you two checks: one for the disputed subrogation amount and the other for the remainder of the settlement. The disputed subrogation amount can be held by either you or the health insurance carrier. I have had the liability carrier hold it pending resolution of the matter.
The health insurance carrier will want evidence that your client has not been “made whole.” You should not expect your simple declaration and a letter over the telephone to suffice. If you have prepared either a settlement package or have discovery materials from a lawsuit, you should forward those to the health insurance carrier.
Obviously, any case that settles for policy limits is by definition a case in which there is no subrogation as your client has not been “made whole.” But, in the usual practice there is a settlement and you should have more than enough information to persuade the carrier that your client has not been “made whole.” If contributory negligence has been alleged that will usually suffice if there is evidence that the settlement has been reduced by a certain percentage.
While none of us like to see the defense in the case hire an adverse medical witness, it is helpful when the time has come to deal with the health insurance carrier. Send the carrier the adverse medical report that sets out the opinion that your client is not as injured as your doctor asserts. That in of itself is sufficient cause for the compromise settlement. If the case is mediated, request as part of a settlement that defense counsel give you a copy of their mediation statement. It will eloquently explain why your case needed to be settled for less than full value.
Dailey is another reason that when you file a lawsuit you should serve request for admissions on the healthcare bills. Again, while it is annoying to have the liability carrier through its attorney deny the necessity of numerous bills, those denials are strong evidence to the health insurance carrier that this is a compromise settlement.
In cases where there is no permanent injury, it is more likely that a plaintiff may be “made whole.” But in cases there is a permanent injury it is difficult to imagine that the plaintiff s are “made whole.”
I expect that there are numerous mediators in the state of Nebraska who would make excellent witnesses and give compelling evidence that a settlement is in fact a “settlement.”
THE PRAIRIE BARRISTER
by Ross Pesek
In the hallowed halls of the Douglas County Courthouse, a young lawyer waited with a mixture of excitement and anxiety. Fresh out of law school and awaiting their license, they were eager to learn from the best. And today, they had a chance to meet the Prairie Barrister, an established trial lawyer known for their unwavering commitment to justice and professional excellence.
As the Prairie Barrister approached, the young lawyer couldn’t help but feel a sense of awe. Here was someone who embodied the highest ideals of the legal profession—a successful practice, the freedom to choose clients and causes, and a reputation for always pursuing their vision of justice.
“Good morning,” the Prairie Barrister greeted with a warm smile. “I hear you’re about to embark on your journey as a trial lawyer.”
“Yes,” the young lawyer replied, trying to steady their voice. “But I have so many questions. How do I even begin to reach where you are?”
The Prairie Barrister chuckled, recognizing the familiar mix of enthusiasm and trepidation. “Let me share some practical advice that might help you on your path.”
1. EVEN IF YOU ARE SOLO, YOU ARE NOT ALONE
“Every young lawyer I meet is full of insecurity and self-doubt about their ability to handle a case on their own. Do you feel the same?”
The young lawyer bowed their head, looking down and avoided eye-contact. Finally, they looked up and said, “Yes. I know I don’t know anything yet. I don’t even know what I’d say at a consultation.”
“For starters, you can be honest with your client and tell them you just started and, if you don’t know the answers to their questions, tell them. You’d be surprised how a little candor can build your credibility.”
The young lawyer nodded, eager to absorb every word.
“Then you can tell the client, that although you don’t know the answer to their question, you will reach out to other lawyers, find the answer and get back to them – free of charge.”
The Young Lawyer was surprised, “Won’t they just look for someone else?”
The Prairie Barrister smiled, “Maybe. But, quite often no. They will wait for you to call them back with the answer to their question and then ask you what the next step is.”
“While you may not be ready to handle a million-dollar case involving a permanent injury on your own,” the Barrister continued, “you can certainly get such an opportunity and then make a team by involving experienced co-counsel. Always keep an eye out for big cases but remember—you don’t have to go it alone.”
The Young Lawyer asked, “Will I have to split a fee? Is that allowed?”
The Prairie Barrister responded, “You might have to split the fee and that is allowed so long as the fee split is in writing and acknowledged by the client as required by the bar association. One lawyer who helped me offered to split the fee 50/50 and they would pay all litigation costs. This allowed me to learn a lot from experienced co-counsel and handle larger cases earlier in my career.”
“But you might not have to pay a co-counsel fee. I remember my first couple cases, they were serious permanent injuries, but the insurance policy limits were only $100,000. I felt overwhelmed and so I called a more experienced trial law-
yer. I was so overwhelmed I tried to give those cases away to that trial lawyer. Thankfully, that lawyer had integrity, they told me to keep the cases, gave me advice along the way and didn’t ask for anything in return. I remember collecting my first $100,000 policy limit check, and $33,000 attorney fee, like it was yesterday. It was a big day for my family – which included a newborn baby at home.”
2. FIND CASES THAT CREATE AN UP-FRONT INCOME STREAM AND GET YOU COURTROOM EXPERIENCE
“Next” the Prairie Barrister continued, “getting courtroom experience is crucial. You can do this by working at a firm, for the government, or a non-profit. But you can also do it by working for yourself and building yourself into a full-fledged independent trial lawyer with the freedom to blaze your own trail.”
The Prairie Barrister leaned in and spoke in a serious tone, “Civil justice cases for personal injuries often use contingency fee agreements, where you don’t get paid until the end of the case and you must front litigation costs for your client. This setup is great once you have enough cases and time for a business cycle to develop. But at the beginning, you need cases that pay up-front to survive long enough to get to the end of a contingency fee case.”
“What kind of cases?” the young lawyer asked, taking notes.
“Traffic tickets, any misdemeanor criminal matter, name changes, divorces, custody disputes, immigration petitions, bankruptcy, juvenile court cases, the possibilities are endless. The main thing is that the client pays up front. Balancing these cases with contingency fee cases that pay at the end of the process is key.”
The Prairie Barrister Continued, “You can handle the cases that pay up front until you have enough civil cases to form a healthy business cycle. At that point, you quit taking the smaller, up-front payment cases and focus exclusively on contingency cases. With focus, you can accomplish this in a few years.”
“Oh yeah, and these are the cases that will get you in the courtroom and gaining experience right away. So, it solves two problems at the same time.”
3. TAKE SMALLER INJURY CASES
“Next,” the Barrister continued, “take smaller injury cases that more experienced lawyers pass up. Experienced lawyers hate telling people their case isn’t serious enough, but they have to prioritize, and they do turn down such cases. If those lawyers know you are just starting out, they might be happy to send you the referral just so they know the person has a lawyer.”
“Why would I take these smaller cases?” the young lawyer inquired.
“These cases teach you the basics —how to consult with clients, communicate with insurers, handle recorded interviews, submit claims information, negotiate settlements, handle lien reductions, maintain trust accounts, and pay clients. Master these skills, and you’ll be ready for bigger cases involving permanent injuries and higher settlements.”
“Oh yeah, and even a small case involving a temporary injury or a state minimum insurance limit can still pay more than some of the other cases you could handle.”
4. EVALUATING A CASE
“How do I evaluate a case?” the young lawyer asked.
“Simple,” the Barrister replied. “Don’t ask about medical bills or lost wages. Ask one question: Is the injury temporary or permanent?”
“If an injury is temporary, you can collect the medical bills and economic costs and make those the basis of your claim. Most of the time, insurance companies will pay for a temporary injury.”
“On the other hand, if someone has suffered a permanent injury you should pay extra attention to the matter. Permanent injuries must be acknowledged in the settlement amount and often insurers want to pay temporary compensation for permanent injuries. If this is the case, spend more time deciding whether a trial is necessary. In permanent injury cases it is important to understand the impact of the permanent injury on the client’s life and understand how to tell their story. Be ready to try the case to a jury and insist on full and fair compensation.”
5. TRIAL EXPERIENCE AND PROFESSIONAL GROWTH
“Remember,” the Barrister emphasized, “every time you try a case, you gain professional credibility and skills. Whether you win or lose, you become a better lawyer for the experience.”
The Prairie Barrister continued, “The lawyer who taught me the way always said that if you try 6 cases, you will win some, lose some and tie some. But, you will always gain professional skills, professional credibility and increase the settlement value on all your other cases.”
The young lawyer looked up, a spark of hope in their eyes. “So, I need to balance up-front paying cases with contingency cases, learn from smaller cases, and focus on gaining trial experience.”
“Exactly,” the Prairie Barrister affirmed.
The young lawyer smiled, feeling a renewed sense of purpose and direction. “Thank you, Prairie Barrister. Your advice means the world to me.”
“You’re welcome,” the Prairie Barrister replied warmly. “Remember, the journey is long and full of challenges, but with perseverance and dedication, you can achieve great things. Stay faithful to the truth, keep your integrity, work hard for your clients and you will find justice and prosperity.”
As the young lawyer left the courthouse, they felt a sense of determination and excitement. The path ahead was clear, and with the Prairie Barrister’s guidance, they were ready to take their first steps toward becoming a successful trial lawyer.
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CIRCLE OF ADVOCATES 2025
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SUSTAINING MEMBERS
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2025
NEW MEMBERS
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WELCOME!
NATA CELEBRATES 25 NEW MEMBERS IN ALL IN THE FIRST FIVE MONTHS OF 2025.
Zach Renshaw, High & Younes, Omaha, NE
Jeremy Immel, Creighton Law, Omaha, NE
Jessica Valdez, Nebraska College of Law, Lincoln, NE
Guillermo Martinez, Sherrets, Bruno & Vogt, Omaha, NE
Chinedu Igbokwe, Banwo & Igbokwe, Omaha, NE
Wm. Richard Kroeger, Mintz Law Firm, Denver, CO
Martha Sanchez-Hernandez, Nebraska College of Law, Lincoln, NE
Alyssa Vela, Creighton Law, Omaha, NE
Todd Jeffers, Jeffers Law Firm, Omaha, NE
C ynthia Cruz, Creighton Law, Omaha, NE
NATA YOUNG LAWYERS
by Sam D. Colwell
THINGS I WISH I’D KNOWN WHEN I STARTED PRACTICE
I loved law school. I might be a glutton for punishment or simply a nerd, but I found the give-and-take of a good Socratic dialogue fascinating. I cherished time spent with classmates and friends debating practice exam answers. I enjoyed the analytical challenges each class brought. Still, while we may emerge from law school armed with legal jargon and foundational knowledge, law school can only teach us so much. When I started practice, as various issues arose, I found myself thinking, “Well, why wasn’t I taught this?”
Of course, the law school paradigm does not allow for the teaching of every little thing that could arise in practice—nor should it. So, from a young lawyer who may still have nightmares of missing final exams, here’s some of the things I wish I’d known when I started practicing.
EVERY LAWYER HAS THEIR OWN STYLE
When I started practicing, one of my bigger concerns was “sounding” like a lawyer. Law school may guide students as to how to think like a lawyer, but it is not necessarily the best forum to help students find their own voice as a lawyer. Outside of clinical programs or trial advocacy class, there simply are not many opportunities to hone your style. Accordingly, when you start practice, you are left only with what you think a lawyer should sound like based on your mentors, your favorite lawyer tv show, or the like. At least for me, I felt that if I didn’t “sound” like a lawyer, no adversary would take me seriously.
For instance, one of my biggest anxieties when I first began practice was making sure I nailed the standard set of instructions to deponents at the beginning of depositions. It seems silly in retrospect, but I figured that I would be exposed as a fraud if I flubbed when asking that the deponent refrain from non-verbal answers. I realized after a while that this anxiety stemmed from observing every other attorney I’d seen take a deposition rattle off those standard instructions without a second thought. It seemed like this portion of a deposition was something every litigator was born knowing. After a few depositions, I stopped trying to replicate what I had seen other attorneys do and just settled into my own style. This made depositions much more comfortable (and fun).
Discovering your voice, and fostering its growth, is one of the most important things a young lawyer can do. Learning how to ground yourself and feel comfortable in all settings as a trial attorney—whether in a conference room at a deposition, or at a trial—is critical to success. It is okay to trip over your words or lose your train of thought because that happens to everyone, even lawyers. If you stumble during your opening statement, that’s okay—you’re a human before your lawyer, and humans make mistakes. If you don’t feel comfortable in your own voice as a lawyer, it is nearly impossible to develop your own style.
YOU CAN’T OUTRUN BURNOUT
Little compares to that euphoric high that comes from finishing a semester of law school. I hold a special place in my heart for that feeling of walking out of the final exam room and knowing that I had no law school-related obligations for a month or two. The information dump that came from leaving the exam room was especially cathartic knowing how much time and effort was put into finals season. While burnout certainly exists in law school, it is mitigated by semester breaks and limited to a relatively narrow period.
In practice, you can’t outrun burnout. There is no question a feeling of catharsis takes over after finishing a jury trial; however, I’ve found this catharsis to be more short-lived than the post-finals version. You may finish the trial, but there is always another case waiting—there is always more work to be done. In other words, I’ve quickly dispelled any
thought that burnout would only be temporary. It’s easy to say, “My workload will clear up after this trial, or after this case is settled, or after this summary judgment motion.” Unfortunately, we know that it is probably not the case.
Therefore, there must be conscious efforts to pace yourself and avoid burnout. Take some time for yourself, go on a vacation, implement boundaries, and seek support when you need it. Your practice will never stop like law school does. Your practice is not limited to a three-year period; hopefully, you will have a long and successful career. But you have to take control of your career early and understand your limits. Your future self will thank you.
BEING STRATEGIC
To reiterate the glutton for punishment theme, I enjoyed final exams. While stressful to prepare for, so long as I knew the material, I found taking the exam to be akin to a game—identify an issue, provide analysis, and move onto the next issue. The more issues spotted, the better. Unfortunately, in practice, this tactical approach can see diminishing returns. There is merit to taking strategic and tailored approaches to cases.
As a young lawyer, it’s engaging to identify all possible moves, and use all such moves. However, I have tried to become more strategic in how I approach cases—which is to say, identify all possible moves, but choose the ones that best advance my client’s interest. By way of example, there may be some inclination to object to every possible discovery request and fight for each objection strenuously. Taken to its conclusion, this approach is time-consuming and can be draining on the client. The strategic approach may be to choose your discovery battles wisely, and contest only those issues that truly matter to the case. Keep pushing your case towards trial. Strategic lawyering can help move cases along with a purpose and help you better control the litigation.
ADAPTABILITY AND GROWTH
Law school provided foundational knowledge upon which to build a career. It is not intended to be the one-stop shop for all legal education in a lawyer’s life. Continuing legal education is important, and—again, maybe I’m a nerd—fun. I find it fulfilling to take a day off from legal work and attend a seminar, preferably a NATA seminar. It is helpful to reset the brain and learn tips and tricks from an array of the best attorneys in Nebraska.
What’s more, the legal landscape is constantly evolving. There are new technologies that emerge and new artificial intelligence that make practice more efficient and streamlined. There are new laws or decisions that are critical for practicing trial attorneys. Law school is not the final destination for legal education—it is just the starting point.
4925-2335-3922, v. 1
LEGISLATIVE UPDATE
by Jennifer Turco Meyer, Chair, NATA Legislative Committee
NATA LEGISLATIVE UPDATE: A PIVOTAL MOMENT FOR CIVIL JUSTICE IN NEBRASKA
The 2025 Nebraska state legislative session brought forth one of the most significant and troubling proposals we’ve seen in recent decades—an attempt to rewrite Nebraska’s civil justice system in favor of powerful out-of-state interests. On May 12, 2025, the Judiciary Committee advanced LB 79 to the floor of the Nebraska Legislature. This sweeping tort reform bill, championed by national insurance, trucking, and petrochemical companies, poses a direct and immediate threat to the rights of injured Nebraskans and the foundational principles of our legal system.
LB 79 is a multi-pronged assault on access to civil justice. It proposes a $2.25 million cap on noneconomic damages in commercial vehicle cases, effectively stripping Nebraska juries of the authority to fully value pain, suffering, and loss. It also eliminates direct negligence claims against employers in trucking cases, removing a vital layer of accountability when companies hire unqualified drivers or put unsafe vehicles on our roads. The bill cuts the statute of limitations for personal injury claims in half—from four years to just two— and alters the recovery for past and future medical damages to allow only the amounts actually paid, not the amounts billed. Further, it allows defendants to introduce evidence of a plaintiff’s failure to wear a seatbelt, potentially reducing recoveries beyond the current 5%, even in cases where negligence is clearly established.
NATA unequivocally opposes LB 79. Despite the proponents’ claims to the contrary, this bill is not the result of balanced negotiation or meaningful compromise between all interested parties. This legislation strips away the constitutional right to trial by jury, erodes public safety, weakens accountability, and tilts the scales of justice in favor of corporate defendants at the expense of our clients—real people whose lives have been destroyed through no fault of their own.
As this newsletter goes to print, only three days remain in this legislative session, and while LB 79 is unlikely to be debated in that time, we are far from out of the woods. The bill has been designated as a priority and is expected to return during the short session of the biennium in January 2026. We have a critical window to organize, educate and prepare for the fight that lies ahead. The NATA Legislative Committee and our lobbyists will remain fully engaged—monitoring every development and aggressively opposing this dangerous legislation. But our success also depends on you:
• CONTACT YOUR SENATOR and urge them to vote against LB 79 and a motion for cloture.
• MOBILIZE YOUR PERSONAL AND PROFESSIONAL NETWORK by sharing our press releases and social media materials to raise public awareness.
• ELEVATE REAL STORIES —if you have a client willing to share their story in opposition, that testimony can make a powerful difference.
• DONATE TO THE NATA-PAC to support the election of representatives that value civil justice and will protect the rights of injured Nebraskans.
This is a pivotal moment for our organization and the clients we serve. The threat to civil justice in Nebraska is real and ongoing, and we must rise to the challenge and respond with coordinated, collective resolve. Let’s use this time to build momentum, strengthen our advocacy, and stand united in defense of the rights of injury victims across Nebraska. SEPTEMBER
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A Guide to ‘Clean Language’ Questions
Use this technique to unlock key information in witness or deponent testimony and paint a more vivid picture for jurors.
By || Phillip Miller and Robyn Wishart
Aprimary principle of effective deposition and trial practice is understanding that the first response from a witness is often not everything they know. When a witness responds to a potentially important question, we need to find out what else they may think or feel about the subject beyond their initial answer, even when the initial response may be considered acceptable.
Witnesses often provide language that clearly could lead to other and more expansive descriptions of their thoughts, feelings, and observations. More often than not, we are satisfied with their initial response and don’t slow down enough to explore what else they may have to say or the metaphors, adjectives, adverbs, and gestures they use.
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This process of follow-up questions is called “exhaustion” and consists of probes such as “What else?”; “Tell me more”; or “And . . .”—often with restating and summarizing the witness’s initial response to make sure we have a useable soundbite. Witnesses coached to be evasive or less than completely truthful in their responses might require more than these typical follow-up probes.
There is a way to probe deeper into what a deponent or witness is saying through a technique called “clean language” questions. Using “clean language” lets you draw subtle attention to the reticent witness’s own metaphorical language to give them an opportunity to deepen their explanation. Using the word “and” followed by the exact metaphor that the witness used will prompt them to focus and expand on their own words.
Clean language teaches us that, even when we have used exhaustion questions and the witness has provided an acceptably complete answer, there still may be meat on the bone. A pattern of simple, follow-up clean questions
can provide insights and testimony that would otherwise go undiscovered.
What Is Clean Language?
Clean language is a questioning technique designed to explore metaphorical language. In the 1980s, David Grove, a counseling psychologist, observed that people naturally use metaphors to describe their thoughts, feelings, and experiences.1 Grove believed that exploring those metaphors could expose rich insights, but that counseling psychologists were either ignoring metaphors or subtly rewording them in a way that made them less meaningful to the person.2
Clean language lets questioners explore the metaphors without contaminating the response with their own metaphors, assumptions, and presuppositions.3 Clean language uses only the responder’s words and their precise arrangement of words, or syntax, as well as the responder’s same vocal inflection and nonverbal behavior.4 A question is not clean if the questioner changes the metaphor that
WHAT IS A METAPHOR?
Metaphors can be classified into the following four categories: gestural, overt, embedded, and embodied.
A gestural metaphor is found in body movements. For example, a thumbs-up, a head shake, or a shoulder shrug are all gestural metaphors. If you are not taking video depositions, you are losing the gestural metaphors—be it for the good or the bad.
An overt metaphor is an obvious comparison. Examples of an overt metaphor are statements like: “I am the queen of patient health”; “he is a giant in the industry”; and “the road is paved with good intentions.”
An embedded metaphor is a metaphor woven into the fabric of our speech and is often the most important metaphor to question. Examples of embedded metaphors are “gasping for air”; “he is performing for the doctors”; and “that is an honest mistake.”
An embodied metaphor relates to a body part. Examples of embodied metaphors are “she has a cold heart”; “he is heavyhanded”; and “that is a knee-jerk reaction.”
the responder used or adds words to the core question.5
Clean language questions are designed to direct the responder’s attention, reduce cognitive load, and shift the responder into a state of reflection for the purpose of providing greater perspective and understanding. Use this guide to identify metaphors to facilitate clean language questions in depositions and trials.6
Mining Metaphors With Clean Questions
Mining metaphors is the technique of using clean questions to get to the witness’s truth without polluting the information with your interpretation. Clean questions allow the witness to “discover their information, from their experience, in their own way. The information evolves internally out of the client experience.” 7 Mining your witness’s metaphors is a two-step process. First, identify the meaningful metaphor. Then, explore that metaphor with clean questions.
Identify meaningful metaphors. Metaphors are everywhere, so you should be purposeful when selecting a metaphor to drill down on by using clean language from the witness. A meaningful metaphor will elicit a greater description of a traumatic event, uncover a bias, reveal a defense, or unearth an opinion on a violation of a standard of care.
Examples of meaningful metaphors include: “it was a scene in a movie”; “these are the types of things we have come to expect”; “I think we did pretty good considering what we had to work with;” or “once you start you never stop—that is the rule.”
Metaphorical language is idiosyncratic. The metaphors a witness uses will have meaning that is significant to their personal experience, expertise, or trauma. There is no way to prepare
a witness to strip their testimony of metaphors. There will likely always be a metaphor in every deposition or trial worth exploring.
Explore meaningful metaphors with clean questions. Once you have identified a meaningful metaphor, set up the witness’s metaphor with a clean language question. The setup for mining the metaphor can be as simple as following these three steps:
1. Acknowledge: Start with using the word “and.” “And” is the setup word you will use to focus the witness.
2. Direct attention: After saying the word “and,” choose the metaphor, word, phrase, or gesture that you want to draw to the witness’s attention. It is critical that you use their exact wording. If you alter the wording in any way, you are now interpreting what the witness has said. Any alteration to the original metaphor will render the clean language question ineffective.
3. Ask a clean question: Finally, combine the “and” with the meaningful metaphor to ask a clean question.
There are three core clean questions you should use with the witness:
1. “And what kind of [meaningful metaphor] is that [meaningful metaphor]?” Asking this probes for clarification on the original metaphor.
2. “And is there anything else about that [meaningful metaphor]?” You can stack the attributes of a meaningful metaphor by asking the witness this question. In the same way that you summarize and exhaust in depositions, you can summarize and exhaust the attributes of a metaphor. Repeat the word “and”: “And [meaningful metaphor]. And [attribute]. And
Mining metaphors is the technique of using clean questions to get to the witness’s truth without polluting the information with your interpretation.
[attribute]. And [attribute].” Make the list. This is an excellent setup for asking the third core clean question.
3. “And that [meaningful metaphor] is like what?” This third question prompts the witness to reframe the original metaphor that they used in their initial answer. Using the clean question “Is like what?” after building the attributes of the metaphor can yield amazing insight into why the original metaphor was meaningful to the witness.
You may think these questions sound clumsy or odd. Don’t change the way they are worded. Do not modify the words the witness uses. Those words are the heart of the technique. A trained
Example
clean language practitioner may use eight to 12 clean language questions, but you can start with these three core questions.
The goal for using this technique is to get better, more robust, and more vivid testimony than you might otherwise be able to elicit.
Here are three examples of words a witness might use that clean language can make more powerful:
“I am the queen of residents’ rights.”
“It was chaos.”
“There was a flood of information.”
A fourth example involves what we call a “gestural metaphor”—a body movement that indicates the witness’s response: Witness shrugs shoulders.
1: “I am the queen of residents’ rights.”
1. “And what kind of queen of residents’ rights is that queen of residents’ rights?”
2. “And is there anything else about that queen of residents’ rights?” Take the opportunity to stack the attributes: “And [attribute] and [attribute] and [attribute].” Use the rising inflection of your voice to keep the list growing.
3. “And that queen of residents’ rights is like what?” This is a request for the witness to provide a metaphor.
Example 2: “It was chaos.”
1. “And what kind of chaos is that chaos?”
2. “And is there anything else about that chaos?” Now, stack the attributes: “And [attribute] and [attribute] and [attribute].”
3. “And that chaos is like what?”
Example 3: “There was a flood of information.”
1. “And what kind of flood is that flood?”
2. “And is there anything else about that flood?” Now, stack the attributes: “And [attribute] and [attribute] and [attribute].”
3. “And that flood is like what?”
Trial Skills and Persuasion || A Guide to ‘Clean Language’ Questions
Phillip Miller is the founder of Miller Law Offices in Nashville and can be reached at
pmiller@seriousinjury.com. Robyn Wishart is the founder of Wishart Brain & Spine Law in Vancouver, B.C., and can be reached at rlw@wishlaw.ca.
Notes
1. Who Was David Grove?, CleanLearning, https://cleanlearning.co.uk/about/faq/
ADDITIONAL RECOMMENDED READING
• Stephen J. Flusberg et al., Effects of Communication Modality and Speaker Identity on Metaphor Framing, 35(2) Metaphor & Symbol 136 (2000).
• Phillip Miller & Paul J. Scoptur, Advanced Depositions: Strategy and Practice (AAJ Press®/Trial Guides 2013).
• Paul H. Thibodeau, E xtended Metaphors are the Home Runs of Persuasion: Don’t Fumble the Phrase, 31 Metaphor & Symbol 53 (Apr. 2016).
• Gerald Zaltman & Robin A. Coulter, Seeing the Voice of the Customer: Metaphor-Based Advertising Research, 35(4) J. Advert. Res. 33 (Jan. 1995).
• Gerald Zaltman, How Customers Think: Essential Insights Into the Mind of the Market (2003).
• Gerald Zaltman & Lindsay Zaltman, Marketing Metaphoria: What Deep Metaphors Reveal about the Minds of Consumers (2008).
Example 4: Witness shrugs shoulders.
1. “And what kind of [questioner shrugs shoulders] is that [questioner shrugs shoulders]?”
2. “And is there anything else about that [questioner shrugs shoulders]?” Now, stack the attributes: “And [attribute] and [attribute] and [attribute].”
3. “And that [questioner shrugs shoulders] is like what?”
who-is-david-grove; Marian Way, Clean Language Questions, CleanLearning, Jan. 10, 2013, https://cleanlearning.co.uk/blog/ discuss/clean-language-questions.
2. Id.
3. James Lawley & Penny Tompkins, Metaphors in Mind: Transformation Through Symbolic Modelling (2000).
4. Id.
5. Id.
6. Within the law, Marian Way, a highly skilled facilitator and trainer in clean language, has been instrumental in encouraging lawyers to use clean language in depositions and trials. Learn more in her book, Clean Approaches for Coaches: How to Create the Conditions for Change Using Clean Language and Symbolic Modelling (2013).
7. David J. Grove & B.I. Panzer, Resolving Traumatic Memories: Metaphors and Symbols in Psychotherapy, 18 (1989).
ADDITIONAL RECOMMENDED READING
Stephen J. Flusberg et al., Effects of Communication Modality and Speaker Identity on Metaphor Framing, 35(2) Metaphor & Symbol 136 (2000).
Phillip Miller & Paul J. Scoptur, Advanced Depositions: Strategy and Practice (AAJ Press®/Trial Guides 2013).
Paul H. Thibodeau, Extended
• Over 20 years of experience
• Professor of Economics, University of Nebraska-Lincoln
• Plaintiff and defense clients
• Testimony in state and federal court
“David Rosenbaum is responsive, thorough, understandable, credible and experienced. He’s one of the best forensic economists in the region. I highly recommend his expertise.”
—Repeat Client
NATA
Big thanks to Shawntal Mallory and the Nebraska Legal Diversity Council for cohosting a wonderful networking event for litigation attorneys and law students. And, many thanks to our speakers Mark Richardson, NATA President, & Ross Pesek, NATA Membership Chair.
We look forward to the next collaborative event together!
Thank you to our speakers and organizers for the successful CLE Seminar held on April 25, 2025!
WASHINGTON UPDATE
MAY 2025
By Linda Lipsen, CEO American Association for Justice
Tensions are running high in Washington, D.C., while lawmakers search for consensus on budget legislation.
AAJ is closely monitoring attempts by lawmakers to add tort “reform” language into the process. There is a proposal to stop the regulation of artificial intelligence (AI) for 10 years. This proposal would preempt existing federal and state laws or regulations that protect consumers from harmful AI technologies. AAJ is fighting to remove this provision and has issued a press release. The House budget bill also contains a limitation on the liability of brokers and shippers in trucking cases. AAJ strongly opposed this provision in the House and will also do so in the Senate.
TELLING YOUR CLIENTS’ STORIES
So much of advocating for change and fighting harmful legislation hinges on the power of authentic stories involving trial lawyers’ clients. When trial lawyers meet with lawmakers and tell their clients’ stories, they can demonstrate positive outcomes or the inability to hold powerful industries accountable, and it can make a profound difference.
AAJ will host its Women Trial Lawyers Caucus on June 4 – 5 in Washington, D.C. All trial lawyers (members and nonmembers) are invited. Our public affairs staff will provide training on our issues and tips for speaking with members of Congress. I’d love for you join us. This is an incredible opportunity to rally with your colleagues and lift up your clients’ voices.
FIGHTING PREEMPTION
Preemption is a persistent problem. The pesticide industry continues to lobby for immunity from all harm related to any pesticide. AAJ is working tirelessly to help defeat these attempts. We will continue our fight to combat pesticide industry efforts at the federal and state levels.
This year, the pesticide lobby targeted 21 states, and bills were introduced in 12. As of May 17, nine states had killed the bill (Florida, Idaho, Iowa, Mississippi, Missouri, Montana, Oklahoma, Tennessee, and Wyoming). Two states enacted the legislation—North Dakota (effective August 1, 2025) and Georgia (effective January 1, 2026).
This has been an enormous battle. We appreciate the efforts of state associations to engage and fight these provisions. As of this writing, North Carolina is the only active state where the legislation is live. There has been strong testimony against the bill in the NC Senate Rules Committee.
KIDS ONLINE SAFETY
On May 14, Senators Blackburn and Blumenthal reintroduced bipartisan legislation to protect children and teens online. AAJ will continue its advocacy for legislation to stop powerful social media companies and digital platforms from avoiding responsibility for massive, systemic harm caused by dangerously designed social media products.
I encourage you to watch and share a new video that is available on AAJ’s online grassroots campaign, Take Justice Back . The video demonstrates how Section 230 of the Communications Decency Act shields Big Tech from accountability. We’ve also posted a video on this topic featuring AAJ’s President, Lori Andrus, on Instagram, X (formerly Twitter), and Facebook
THIRD-PARTY LITIGATION FUNDING
Federal and state legislation requiring the disclosure to defense counsel of plaintiffs’ and attorneys’ third-party litigation financing (TPLF) agreements is a top priority of the U.S. Chamber of Commerce and its allies this year.
Legislation addressing the disclosure of TPLF agreements has been introduced in 23 states. Georgia, Kansas, and Oklahoma join Indiana, Louisiana, Montana, West Virginia, and Wisconsin in requiring some level of disclosure, varying as to whom disclosure is directed and under what circumstances.
In Congress, Representative Issa (R-CA) reintroduced H.R. 1109, the Litigation Transparency Act of 2025. Last Congress, Senator Kennedy introduced S.2805, the Protecting Our Courts from Foreign Manipulation Act of 2023.
LEGAL AFFAIRS
AAJ’s amicus curiae briefs help to ensure that access to justice is rigorously defended in courts nationwide. In the first 16 weeks of the year, AAJ filed 12 amicus briefs. More information on AAJ’s amicus curiae program is available on our website, including links to AAJ’s briefs. For more information or to request AAJ amicus support, please email legal affairs.
AAJ also advocates for fair and balanced federal rules to ensure that plaintiff attorneys are represented.
The proposed amendments to FRAP 29—Brief of an Amicus Curiae—have been fixed. The Advisory Committee on Appellate Rules substantially changed its proposed rule based on comments from both the plaintiff and defense bars. In a rare showing of agreement, they favored the proposed rule. The Advisory Committee eliminated party consent for filing a brief from the rule. The revisions ensure that parties will not have to engage in motion practice to get an amicus brief filed. Other provisions, including the disclosure requirements, were also substantially revised. This rule is headed to the Standing Committee for approval on June 10.
If you have questions, email Sue Steinman or Kaiya Lyons, or see our Federal Rules page and Rules Tracker
RULE OF LAW
When AAJ’s Board met on May 1, it passed an amended resolution supporting the rule of law. It is crucial for us to have a unified voice and be the firewall against any attacks on the legal profession, attempts to penalize or threaten lawyers and law firms for representing specific clients, efforts to impeach judges, and threats to judges whose decisions do not align with particular political interests.
Let’s continue to work together to preserve the rule of law and expand awareness about the tremendous work trial lawyers do on behalf of injured workers, patients, and consumers. Your involvement makes AAJ and trial lawyer associations nationwide a connected, valuable community and resource for trial lawyers. Thank you for all you do.
CONTACT
AAJ Advocacy
Email: advocacy@justice.org
we are stronger together
JOIN US IN THE FIGHT FOR JUSTICE
The American Association for Justice (AAJ), formerly the Association of Trial Lawyers of America (ATLA®), is an organization committed to promoting accountability and safety, advocating for a balanced civil justice system, improving our communities, and educating lawyers to provide excellent advocacy for their clients.
As a member of AAJ, you will play a meaningful role in the fight to protect the Seventh Amendment while accessing the tools you need to most effectively represent your clients against even the most powerful corporations and industries.
AAJ is the only national plaintiff lawyer association working as an advocate for trial lawyers on a broad range of issues, using lobbying, litigation, and public education to promote a fair and effective civil justice system.
JOIN THE AMERICAN ASSOCIATION FOR JUSTICE
Join us online at justice.org/Join or by contacting us at 1-800-424-2727.
