“Being Inauthentic Is a Betrayal of People’s Expectations”: Kyle Schneberg on Nursing Home Injury Law

Timothy Kowal, Esq.
November 29, 2022

After amassing $100 million for his personal-injury clients, Gerry Spence Trial Lawyer’s College alumnus Kyle Schneberg started Bedsore Law, a national law firm protecting the rights of elders in nursing homes. Kyle sits down with California Appellate Law Podcast co-hosts Jeff Lewis and Tim Kowal to discuss:

  • The different approaches taken by personal injury attorneys, from “billboard attorneys” to settlement mills to big-dollar jury trials, and in between.
  • How has California’s MICRA cap on medical-injury cases affected victims’ ability to get justice?
  • What is the Gerry Spence College like?
  • Nursing-home injuries and the changing needs in that space.

Kyle Schneberg’s biography, LinkedIn profile, and Instagram feed.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Tim Kowal’s Weekly Legal Update, or view his blog of recent cases.

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Other items discussed in the episode:


Kyle Schneberg  0:03 
Not being authentic. It's really a betrayal of people's expectations.

Announcer  0:07 
Welcome to the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal, and the California Supreme Court. And now your hosts, Tim Kowal and Jeff Lewis.

Jeff Lewis  0:21 
Welcome, everyone. I am Jeff Lewis.

Tim Kowal  0:23 
And I'm Tim Kowal. Both Jeff and I are certified appellate specialists but we're uncertified podcast hosts. In this podcast we bring our audience of trial and appellate attorneys some news and perspective they can use in their practice.

Jeff Lewis  0:35 
And a quick thank you to our sponsor. A podcast is sponsored by casetext. caseTexas, a legal research tool that harnesses AI and a lightning fast interface to help lawyers find case authority fast. I've been a keys tech subscriber since 2019. And I highly endorse their service listen to the podcast will receive a 25% lifetime discount available to them if they sign up at casetext.com/calp. That's Casetext.com/CALP.

Tim Kowal  1:02 
All right, Jeff. And today, as you know, we are pleased to welcome Kyle Schneeberg to the show joining us in our live studio, which is strange because we don't have a studio. It's actually just sitting in Jeff's lap. Now, Kyle is a founding partner of bedsore law, a national law firm fighting for new nursing home justice. Prior to his current position, Kyle spent 16 years as a trial attorney representing injured plaintiffs. He is an alumnus of the Jerry Spence Trial Lawyers college, and he has spoken on expert panels about skilled nursing facility liability to the USC Leonard Davis School of Gerontology the California Advocates for Nursing Home Reform and the Consumer Attorneys Association of Los Angeles. Throughout his career, Kyle has tried numerous cases to jury verdict and help injured victims recover over $100 million. Kyle, welcome to the podcast. Thanks for being here.

Kyle Schneberg  1:51 

Thank you, Tim. It's a pleasure to be here with both of you. Well, and

Tim Kowal  1:54 
Kyle, was there any important details that I left out of those introductory remarks?

Kyle Schneberg  2:00 
I think you've covered it. You know, one thing I mentioned sometimes is that I started out with a defense background and I've been from solo practitioner firms to large firms, midsize firms. I've got a wide range of experience seeing this industry from all kinds of different angles.

Tim Kowal  2:15
Yeah, I was curious to know a little bit more about the Jerry's bench trial lawyers College. I've always heard about that and thought that was completely memorable and game changing experience. Can you share a little bit about

Kyle Schneberg  2:25 
it? I'd love to. It was I'm fortunate to have gone and 2018 It changed a bit after 2020. It's now called the Spence trial method. And it's a bit different, a lot of the same people but different. That was an experience like no other. They took about 50 attorneys twice a year, hundreds of applications. So it was somewhat exclusive. And we went out to an old cattle ranch that Jerry Spence owned about two hours outside of Jackson, Wyoming, we had virtually no cell phone coverage, no Internet, and we went out there for about three weeks. And we worked on legal theory for about 12 hours a day, about seven days a week, it was very intense,

Tim Kowal  3:06 
they put you out in the middle of nowhere. So you don't have any distractions, right, by design. So what was that total immersive experience that changed the experience? Do you think,

Kyle Schneberg  3:15 
Oh 100%. And not just professionally but as a person, we went very deep. Jerry Spence designed this to sort of impart how he approached cases and tried cases. And he was a very big believer in something that sounds a little crazy called psychodrama. Even the psychodramatists admit it's like the worst name you could give, you know, any practice, but what it refers to is essentially psychology, dramatization of people's traumas. And in order to learn how to do this, we did it on ourselves. And as you can imagine, it was very intense.

Tim Kowal  3:51 
Yeah, so it was a more psychology and persuasion driven the nuts and bolts trial practice, you know how to get documented under the business records exception, say I take it that way, not the focus of the expense method

Kyle Schneberg  4:01 
fair. And it was taught by volunteer trial attorneys from all over the country who had been involved with the program for a long time. But what we really studied were two things empathy, because it's very hard to represent somebody who has had a serious injury, if we can't empathize with what they've gone through what they're going through, but also storytelling. In other words, how do we communicate that experience to a judge or defense counsel or a jury?

Tim Kowal  4:27 
Yeah, well, sorry to get waylaid on that I just so interested in hearing about the Spence trial College. Kyle, tell us a little bit more about your trial career. And I'm particularly interested in how you've counted up to $100 million. That's an amazing spreadsheet on that.

Kyle Schneberg  4:40 
Yeah. Let's take a while to recreate you know, as I mentioned, I've worked for many offices. In my almost 20 year career, I've had the good fortune to work with some of the greatest trial attorneys in the nation and been part of trial teams where we've gotten eight and nine figure verdicts, huge settlements. In fact, one of the greatest attorneys in LA Rex Paris, who's an old Trial Lawyers college guy, I think put it best to get a gigantic settlement or verdict, you've got to turn down a big settlement or verdict to get those, you typically need a very serious legitimate case.

Tim Kowal  5:13 
Yeah, yeah. Well, Jeff, I don't know if you know, I've known Kyle for a year or two. And then recently, we were on opposite sides in a case. And so at first, I liked Kyle, and then I hated Kyle. But now that case is done. So I like Kyle, again.

Kyle Schneberg  5:26 
I appreciate the zealous advocacy there, Tim? Yeah.

Tim Kowal  5:29 
Well, as long as I didn't want my case to make, you know, make a Richter scale, you know, event on your $100 million recovery. I don't think it's going to add up too much in there. I don't think you're gonna have to update that number Kyle after our case, but it was nice to work with a good attorney who was also ethical, it's someone that you don't have to you don't exchange fire breathing comments with.

Kyle Schneberg  5:47 
I feel the same way.

Jeff Lewis  5:48 
All right. So Kyle, before we talk about bedsore law, your current practice, let's talk a little broader about the state of personal injury law in California. Do we have too many personal injury lawsuits in California?

Kyle Schneberg  6:01 
So you know, it's good that you asked this question because this comes up in every trial. And if we're not plaintiffs attorneys are not raising this invite, dear probably come up organically. I bring it up. Because we want to find out how people are going to react to our cases. The reality is, this is how we settle disputes in in our modern society. And it's really the most just way to do it. You know, the alternatives are what fistfights or you know, the Hatfields and McCoys. So we definitely don't want to I think it's just a part of human nature. We have these disputes that we got to resolve one way or another.

Jeff Lewis  6:36 
Well, let me say this, though, I'm a business owner, I'm an employer, aren't personal injury lawsuits, bad for business?

Kyle Schneberg  6:42 
You know, I'm a business owner to personal injury laws don't discriminate against business, what we have is a negligence system that's based in common law. It's been around for hundreds of years. And if anything, the only laws we have relative to personal injury laws are laws that actually minimize that common law tradition. The reality is, this is how we get justice. And I think in any society, you know, justice is a good thing, the more injustice we have, the worse it's going to be for everybody, including businesses and their owners.

Tim Kowal  7:11 
How much does the increase the prevalence of insurance play into the number of personal injury cases and the size of the settlements, the nature of the negotiations, I imagine a lot of personal injury plaintiffs, you know, maybe, let's say 100 years ago, they may have gotten hurt, but figured, well, you know, it's not that big a deal, this person doesn't have the money. But now everyone thinks, Well, you know, so and so's insured. So they're not gonna care, they'll just let the insurance company pay for it. I wonder if that change the dynamics of a personal injury litigation

Kyle Schneberg  7:37 
insurance company is very relevant to the whole system, you know, every now and then I come across these old case opinions from the 30s and 40s. And 50s. It's sometimes we seem even in the 1880s. And insurance has been around for a long time. I would say in my experience 99%, these recoveries, verdicts settlements are against the insurance company and the insurance companies responsible for those. So the personal exposure or the actual exposure to a business, it's pretty rare. In my experience,

Tim Kowal  8:05 
yeah, it's the insurance company becomes the defendant. They're the pocket that the plaintiffs trying to reach into where there's an important

Kyle Schneberg  8:11 
distinction there because they don't become the defendant, which I think is somewhat disingenuous in our society. Because if they have a 90 year old lady who, you know, ran over three people, the insurance company gets to come in and say, well, Miss so and so you know, is 90 and doesn't have any money and this and that, but meanwhile, there may be a $2 million insurance policy behind the curtain that we can't tell the jury about.

Tim Kowal  8:34 
Right. Well, and does California impose any limits on recovery for non economic injuries in California

Kyle Schneberg  8:42 
adu there are several laws that govern the recovery of damages, etc, that but the main one that comes up in my practice is, of course micro, the medical Injury Compensation Reform Act from 1975 that kept non economic damages at $250,000.

Tim Kowal  8:58
What are your opinions about the micro law? And I know there's a lot of pros and cons about, you know, have that really limits legitimate plaintiffs recovery, because litigation is expensive. And when you go into these cases, you need to find an attorney who will represent often you're looking for a contingency attorney. And if the damages are kept to such an extent that contingency doesn't make sense, then kind of pricing a lot of plaintiffs out of the market aren't. So what are the kind of give us a city Buster on the pros and cons of the micro law?

Kyle Schneberg  9:25 
Right? It's one of the worst, most unjust laws for consumers in history. I mean, it absolutely has blown out responsibility for many kinds of injuries. It micro did not cap economic damages. So you know, the example I've always gone to is if a doctor did surgery on Jeff here, and you know, injured him negligently so that he lost his right arm and now his livelihood is affected, his life is affected. There's a certain amount of economic damage that can be attributed to that. case is probably viable if he had just severely wounded Jeff. And he's able to still do his job, but he has excruciating pain in his arm for the rest of his life. That's a 250 case. And the risk of that case may not, you know, it may prevent Jeff from finding someone to represent him.

Tim Kowal  10:17 
Yeah, okay. Well, most of your practice has been in is a medical injury, nursing home injury, that's what you're doing now. But where did where did you cut your teeth? What kinds of injury cases?

Kyle Schneberg  10:28 
Well, I first cut my teeth on bad faith cases for farmers back almost 20 years ago. So I've been around the block in a lot of different areas. I've done most of my work in general injury, but I have a history since approximately 2010 of handling elder abuse cases. I'm not a medical negligence, med mal attorney, I largely don't handle those. We do have an overlap, though, in elder abuse and medical negligence because of the nature of the laws.

Tim Kowal  10:57 
Yeah. Kyle, what are some lessons that you've learned about how to have a successful personal injury practice?

Kyle Schneberg  11:05 

I've learned a lot of lessons in my career, for better and worse, you know, authenticity goes a long way in this industry, in my opinion, with ourselves with our clients. My goal has really been to figure out what Justice looks like for my clients. And I think, you know, humbly, I've been fairly successful doing that. I've had very few dissatisfied clients. I mean, there's some folks out there who I'm not sure if anyone can satisfy them. In fact, some of my best results have been for clients who were not happy with them, even though they were phenomenal results. But being authentic with ourselves and with our clients is something I learned is more important as I row.

Tim Kowal  11:45 
Yeah, I'm reminded you told me once that just to kind of take a brief detour onto illegal marketing, you were telling me about how you were doing some marketing at one time on Instagram, I think or maybe me tic TOCs. The big thing now and people have been telling me the algorithms are on tick tock are driving the search results on Google and I should be on tick tock and I said I can't imagine what kind of appellate legal marketing I would do on tick tock but you know, the algorithms or the algorithms, do you have any comments on how to be authentic in your legal marketing and the social media age?

Kyle Schneberg  12:15 
I do. You know, in this comes from my TLC training trailers, college, Jerry Spence is famous for saying he was there for one of the three weeks, he was about 90 at the time, he is famous for saying, anybody can beat me in the courtroom, if they can be more authentic than me. And authenticity is really where he comes from. I think this is how maybe people get into trouble on social media is not being authentic. It's really a betrayal of people's expectations. And right now, social media has caused everyone to get personally involved. I mean, people think they know the person on social media, right? So if that authenticity falls apart, these people who have bought into that feel terribly betrayed, you know, it becomes very emotional.

Tim Kowal  13:00 
Yeah, I think that's very interesting. What do you mean by that not being authentic is a betrayal of people's expectations? Are you talking about when a client hires you after they have gotten comfortable with you, and they get a sense about who you are. But then if you go into the courtroom, and you become a different person? Is that what you're talking about? It's a betrayal of the clients expectations.

Kyle Schneberg  13:20 
Not so much that, you know, I have the experience of taking on cases from other law firms. One of the firms I worked for did a lot of work for attorneys who didn't litigate, and there was the case originated with other attorneys, and then they would send it to us if it needed to go toward trial in litigation. And what was very common is I would find out the clients did not have full information about a lot of their cases, the risks, the benefits, and as you can imagine, that was very troubling to them.

Tim Kowal  13:52 
Yeah. I had one other question about your experience or your perspective on personal injury practice. Now, there are a lot of personal injury attorneys out there, as you know, and in fact, you can see a lot of them on your your way to and from work from the freeway on the billboards, do all personal injury attorneys practice basically the same way. What are the different schools of thought among personal injury attorneys?

Kyle Schneberg  14:14 
No. And that's what makes this industry so unique. Every attorney, I believe in from my own experience approaches a case differently. There are attorneys who, again, are interested in the pre litigation process. They're not interested in the litigation process. And then there are attorneys large look like myself who have been involved mostly in the litigation process. We can even get into the nuances of the different areas of Injury Law. So every attorney I think, has a different model for how they try to win a case for their clients.

Tim Kowal  14:44 
What are some of those different models? Some is just trying to get a settlement or go in for the big bucks by going to trial? What's the best approach? What's the Kyle Schneeberg approach?

Kyle Schneberg  14:54 
You know, my approach is to find out what my clients want to do and I've worked really hard to Spend time with my clients to educate them. And it's been my experience that the more I educate them, the more time I spend with them with, you know, within reason, because our time is, of course limited, I get a more happy, satisfied client at the end of the process if they know what the risks and benefits are one of my major criticisms in the personal injury space, it has to do with the law changed back in 2012. That said, if an insurance company paid a certain amount for treatment, you can recover that amount for decades, it didn't matter what the paid amount was, what mattered for the purpose of economic damages was the billed amount. So what was the charge, and there is now a huge conflict of interest where if I have a client get a surgery on Medicare for $3,000, but a doctor may have done that on a lien for $40,000, it greatly affects the value of the case. On the other hand, I want my client to make that decision. I don't want to send them toward a doctor and steer them that way, because they're also going to be responsible for that cost. If the case doesn't work out the way we hope it does. Yeah, a lot of clients are not being told about this, though.

Unknown Speaker  16:07 

Tim Kowal  16:09 
So where's the line between where an attorney should delegate things to associate attorneys or paralegals? And what sorts of things should the attorney who has been retained by the client attorney the that the client has the personal relationship should do and should not delegate, you have a firmly drawn line in your mind on on that question of what to delegate and what to handle personally,

Kyle Schneberg  16:28 
it's a really tricky issue, meaning, you know, it's tough, I believe anything substantive, substantive in the case, in terms of decisions being made or expectations, I think that should really go up to an attorney to at least be involved with, but there are a lot of sort of clerical tasks in a case, you know, getting medical records, updating the file regarding how a client's recovery is coming, if it's coming, even basic discovery responses, but yes, the attorney should be involved anytime there's going to be a decision that potentially affects the clients expectations of the outcome.

Tim Kowal  17:04 
Well, at some point, obviously, you started to do more and more injury law in nursing homes. Tell us how you got into that. And obviously, that turned into bedsore loss, tell us about that transition into your work and do nursing home injuries. And finally, into bedsore law, which you're doing now is a national practice.

Kyle Schneberg  17:21 
Thank you. Yeah, I'd love to talk about that. And back in in brown 2010, I was working firm to exclusively handled elder abuse and nursing home injuries, we were doing both defense and plaintiffs. And at the time, I went into probably 100 to 200 facilities across the nation. As a defense attorney. It was a very educational experience. For me, I learned a lot about that industry, my career then moved towards general injury and trial practice. But when I started my solo practice in 2018, I focused primarily on general injury for the primary reason that skilled nursing cases are very expensive to maintain. We have a lot of expert witness testimony, we have a tremendous amount of document collection, they're very long motion heavy. Now, I'm at a point where I have the ability to move back towards nursing home, which I actually prefer for a variety of reasons. And I think there's a real need in the current industry, legally and the nursing home industry for it or this service for people.

Tim Kowal  18:22 
Was this an area of law that you sought out? Or did you suddenly just start getting calls about injuries occurring in nursing homes? And it was and then you realize that there was a need here for more attention?

Kyle Schneberg  18:32 
No, I've kept a hand in it. Even since I left my initial nursing home injury firm about 10 years ago, I've litigated these cases all along. But with a focus in general injury, our pivot into this industry completely is a conscious choice to go and seek out more of these cases and help these folks,

Tim Kowal  18:51 
is there just not enough attorneys working in this space?

Kyle Schneberg  18:54 
That's an interesting question. I think there is a bit of an old guard that is coming toward the end of their career, you know, don't tell them I said that. But just age wise, they're getting older. I'm not sure what they're going to do with their practices. There are a lot of younger attorneys getting into the space is a very technical space, though it's very challenging, and the nursing home industry, due in part to their own poor decisions, as well as decisions outside of their control. It's getting much worse than it's been even in the last 10 to 20 years.

Tim Kowal  19:25 
What are some of the common issues that come up again and again, in these nursing home injury cases?

Kyle Schneberg  19:30 

Well, one of the problems we've seen by the way, there are several academics who study this industry in considerable detail. There's long been known to anybody in the industry that there is a correlation between nonprofit ownership and quality of care. So it's well known that nonprofits provide better care than the for profit companies. This is documented. Unfortunately, the industry has largely moved to for profit ownership. What we also see is a correlation between the amount of staffing being provided and the frequency of injuries and bad outcomes. And as you can imagine more staffing and better staffing leads to better outcomes, fewer injuries. But what we've seen over the last 10 years is a real crush down on the staffing. I think it actually improved about 15 years ago, but it's gotten increasingly poor over the last 10 years from what I'm seeing in my cases. But now with inflation, the competition for employees there really the nursing home industry is really struggling.

Jeff Lewis  20:31 
You have been able to sneak into trial in front of the jury. Some of those stats about the difference between nonprofit and profits and staffing levels.

Kyle Schneberg  20:39 
I unfortunately don't have to because we have expert witnesses that can do this for us. Yeah, and one of the most well known and regarded experts is out of University of San Francisco, Charlene Harrington, she's done a lot of work in this industry over the last 30 years.

Jeff Lewis  20:53 
Interesting. Hey, one of the lawyers that I follow is a personal injury lawyer back east, his name is John Fisher. And he's written a couple books about law practice management, but he's also a PII lawyer, in addition to an author. And one of his philosophies is he does not agree to confidentiality agreements ever in his medical malpractice cases. I wonder if there are any core values or philosophies like that that are behind like does bedsore law have a broader mission other than just representing folks?

Kyle Schneberg  21:22 

It's that's an interesting point, that I guess this is a little bit different. I think our broader mission is to become a force to be contended with in this industry. There are some incredibly large injury offices in Los Angeles that are very effective in compelling insurance companies to take their case, seriously, the insurance industry and I've heard, you know, various anecdotes about why insurance industry from what I understand over the last 20 to 30 years has become increasingly aggressive in its defense tactics. For example, a year ago, I had a liability denied on a rear end case where my client was like an 80 year old woman, she was adopted a red light. And the insurance company denied liability on that case, when they're insured and rear ended my client. So it is very aggressive out there. We are trying to build a firm with resources and a size that can compete in this field. And I don't believe anybody has done that yet, in the nursing home injury base,

Jeff Lewis  22:25 
are you telling me that an insurance company will give different segment values to a case based on the identity and perceive aggressiveness of the law firm representing the plaintiff?

Kyle Schneberg  22:36 
What we're told and I haven't been on the other side to see this is that they do track results of individual attorneys of law firms, meticulously analyzed the data of jury verdicts in a given jurisdiction. They're very savvy. And to be fair, it's not illegal, it's not unlawful. Some of my colleagues, I think, get very emotional about it. But unfortunately, this is business for the insurance industry. And you know, they're allowed to do this.

Tim Kowal  23:03 

So what would happen if the insurance company saw that the plaintiff's attorney had retained a certified appellate specialist and they were ready to go the distance in this case, that means that they're going to take this case more seriously, and increase their offers?

Kyle Schneberg  23:16 

You know, maybe one of you guys would like to jump in pro bono on some of my cases, and we can test that theory, the insurance industry, my experience that what they really are afraid of are economic damages. That's their main, so I'm not sure if the appellate angle is that make too many waves with them?

Tim Kowal  23:34 

Yeah, they're looking at to see if they're gonna get big dollar verdicts awarded against him. Yes.

Jeff Lewis  23:39 

Hey, I want to back up to earlier in our interview, we were talking about the cap on non economic injuries in California. Is there a movement to change that? Or is that going to change anytime soon? I think we talked before this interview about tying it to inflation or tell me about where the law is headed in terms of that cap.

Kyle Schneberg  23:58 

Sure. So that's already happened. There was a very quick development earlier this year. And this is this. As you can imagine, this camp is something that has been fought since essentially, it was legislated in 1975. But earlier this year, through the work of some very fantastic attorneys and people on both sides of the table, they reached an agreement and the law is changing for the first time in almost 50 years. The cap will go up from $250,000 to $350,000. Next year, it will continue to increase for 10 years, and then there is an adjustment yearly for inflation.

Jeff Lewis  24:35 
Oh, that's great. That's fantastic.

Tim Kowal  24:37 
Oh, and your practice in against nursing homes is the micro law apply there as well.

Kyle Schneberg  24:42 
It does in for a couple of reasons. One, the burden to prove Elder abuse is much more stringent than the burden to prove medical negligence. So we have some overlap. But what's really interesting to me at the moment and elder abuse is such an interesting field from I think an appellate standpoint in L or abuse, they for whatever reason, they tied a pre death pain and suffering cap to the micro cap, I think back in the 90s when elder abuse was legislated. And the reason they did this was to incentivize suits. But what's interesting is a year ago, they legislated a new pre death, pain, suffering law in general. And it took effect earlier this year, that now allows pre death, pain and suffering for the first time in the history of California to be recovered by anyone. And so what's interesting about the elder abuse is now what was an incentive has essentially become a penalty. And I'm not aware that anybody has, you know, amended that or fought to change that yet.

Tim Kowal  25:37 

So playing that again, so there was a pre death, pain and suffering payment, there used to be a cap on it, right? So

Kyle Schneberg  25:42 
until January 1 2022, nobody could recover pre death, pain and suffering damages, you could have a wrongful death lawsuit, but if somebody died before their recovery, so what it did died with the plaintiff, right? So what the legislator did a few decades ago, because as you can imagine, if somebody is abused at 85, they may not live to see justice in their lifetime, the legislators said, Okay, we'll allow up to $250,000 of pre death, pain and suffering

Tim Kowal  26:10 
for the smokers. Okay, and that can be recovered by the estate, the representative,

Kyle Schneberg  26:13 
which is often the successor in interest, but now generally, we treat elder abuse cases as uncapped. They're not subject to the microcap but because of this legend, the wording of this legislation, it's anybody's guess what a judge would do is read the notes on covers

Tim Kowal  26:31 
now unclear with 1000s. Whether this pre death, pain and suffering, it may be limited by Micra or it may be unlimited under the elder abuse statutes. Well, I

Kyle Schneberg  26:40 
think because of the shift to allow pre death, pain and suffering for everyone that the cap should be, you know, it's become moot through elder abuse, but it's still in the books, and presumably, the people involved with the micro change. Were aware of it. So I could see a judge saying, Well, you know, it could have changed that at the same time.

Tim Kowal  26:59 
Yeah. So this isn't this is an open question that we need to watch fertile ground for some appellate

Jeff Lewis  27:05 
lawyer to come in and exploit. Let me ask you, this made this a better question for Tim. But Kyle, what would you say your opponents would say is unique about you, or the way you handle your cases?

Kyle Schneberg  27:18 

My opponents, I'm pretty transparent. If we could ask Tim by the way, who was recently my opponent, I try to be pretty transparent. I truly believe in civility. I like to work with the other side to reach a fair outcome, whatever, you know, whatever we decide that is, on the other hand, you know, if we go to war, we go to war, and it will be merciless, and we'll get what our clients deserve.

Tim Kowal  27:42 
Yeah. Luckily, I didn't see the merciless side of Kyle. We were I came in late in the case and we were able to I was I was only able to see this side of Kyle, we were able to just get the thing resolved. So yeah, very transparent and civil. Usually our experience, Jeff is appellate attorneys we kind of swoop in and we have plausible deniability that hey, I don't know what happened before. Let's all be friends now.

Jeff Lewis  28:03 
Yeah, I love practicing appellate law. That pillow bar is so much more polite. It's a great practice. Yeah.

Tim Kowal  28:08 
But Kyle, speaking of merciless advocacy, do you have any good war stories you can share with our audience? War stories, you know, particularly where you've been merciless.

Kyle Schneberg  28:19 

Maybe this will fall into that category. I tried a case a relatively small case. And you know, none of the damages are small for my clients. But this was valued as a smaller case, less than a month after I came back from the trial or his college. And it was in the Long Beach courthouse. It was a soft tissue, rear end crash, very minimal damage. These are very tough cases, because juries typically don't like them. And we got into a discussion during voir dear, where half the panel half the folks in the box brought up examples of plaintiffs lying about injuries. One woman mentioned a guy who walked with a cane during his trial while she was on a jury and then saw him at like a 711. Right after the day was over and you know, had no cane and was walking fine. Another woman said she handled workers comp cases for an employer and they had videos of people, you know, faking all their injuries. And as you can imagine, as a trial lawyer, I'm thinking, oh, boy, this is not going to go well. In fact, the foreman ended up being an executive assistant to the at the time, the city attorney belay, who said that all they dealt with all day long were unjust employment lawsuits in her office. So this case was a dispute over we had demand at $27,000 for a client who had several injections into his back in order to get better. He was a young guy taught for special ed, very nice guy. And the defense only Mercury Insurance only wanted to pay $12,000 on the case. And I think we were being pretty reasonable. So what happened is through reviewing the whole file and going through the cases, the case that took on from another firm, the defense had claimed that they were going you know X amount at the time of the crash I think 30 miles per hour and And in trial, the defendant testified he'd been going about 10 miles per hour to crash. And I had asked this jury and why dear, can you allow for the possibility that not only some people out in the world will lie to get money that there are people in the world who will lie to win the case as a defendant. And so when on the stand, this guy brought in, by the way, he you know, he owned a business downtown, he drove like a supercharged x five he had like a Rolex on and kind of this impatient old man, the old being in his 70s clearly didn't want to be there when he repeatedly said they couldn't have been going more than 10. And then we brought out his interrogatory responses saying he was going about 30. I think that was the end of the case. Yeah. And Mercury ended up paying about 75,000 on that case.

Tim Kowal  30:47 

Yeah. I didn't ask you this before about when you mentioned about how insurance companies are very savvy, and so they will study the plaintiff's attorneys to see if they, you know, what's their exposure as against this particular attorney? What are their resources? Like? Do you think that they have research on this and is it discoverable? No, it's

Kyle Schneberg  31:05 

definitely not going to be discoverable. I'm not sure if you've had any cases come up involving attorney work product. But a few years ago, it became much more I think, restrictive the law surrounding attorney work product. II know, I think there's a mythology on my side of the courtroom, where there are some conspiracy theories about the insurance companies and whatnot. But I have repeatedly heard that they do track this information, you know, is this data that's shared among insurance companies? Or is it just you know, each insurance company keeps track of its own? I have no idea.

Tim Kowal  31:36 

Okay. Another question about the micro law and the fact that bedsore law is a national practice. And so you've got cases, not just in California, but in other states, how do you compare litigating these cases against nursing homes and other states as compared to California? Is it do California laws make it more difficult than practicing in other states? How do you rate it? It really depends.

Kyle Schneberg  31:56 

Some states are more restrictive than California, others are less, there are states that have certain immunities that we don't, you know, I think it really comes down to the jurisdiction of the jurors, at the end of the day, unless you get hauled into arbitration, these cases are going to be decided by a jury. And so both sides are trying to figure out is that a jury that's going to be sympathetic to this argument in this injury, and if you know, if they're like, if you're stuck in Orange County, you're expecting a worse outcome than if you get into LA County, because the jury is down there are on the whole. And by the way, this is not a black and white rule, you can have a worse outcome in LA than Orange County. But on the whole the statistics are that Orange County is going to give you a lower results. So there are states that are the same way.

Tim Kowal  32:41 
Yeah. How do you account for that? And I've heard the same thing from med mal attorneys that someone will just leave the practice entirely because it just makes him sick to get all the way up to trial prepare, put on a great trial for a worthy deserving plaintiff. And yet, you have jurors who just decide well, but this is a doctor, doctors can do no wrong. And how do you account for that bias? And and does it really vary so much by jurist from one jurisdiction to another?

Kyle Schneberg  33:06 

It does? In my experience? It does. There are so many factors in these cases. I mean, listen, I've heard that there have been verdicts decided, because they didn't like the shoes, you know, that the female counsel was wearing or something like that jurors can be very, they're human beings, right? They can be very arbitrary and capricious at times, which is why authenticity is so important. In that process. When I had this case that I talked about in Long Beach with what I would characterize as relatively conservative jurors, I spent a lot of time talking to them, asking if they could be receptive to certain evidence. So what we look at when we're handling a case in a conservative jurisdiction, we look at who's involved. And to your point, you know, I would much rather have a nursing home defendant than a doctor defended a doctor defendant is almost always going to be liked by a jury. Yeah, nursing home is often not liked by a jury.

Tim Kowal  33:57 
What are some questions you'd like to ask during volunteer to try to get the sense of the jury? And if they are a conservative jury who's going to put the thumb on the scale in favor of the doctor or a jury who is going to be a little bit more independent minded?

Kyle Schneberg  34:09 

So based on my training, I try it, you know, and listen, I'm a human being I have my own prejudices that quite frankly, I wish I didn't have. And I think I'm not too much of a prejudiced person. But who knows? That's probably what prejudice people say. I try not to approach jurors with any preconceptions, because one, you know, the people who my most recent case a couple of years ago, trial for the pandemic blew everything up. The people who I thought were going to be with me weren't and somebody who I thought didn't like my case was the most favorable. So I really try to be authentic with them. And it's the hardest thing to do. And this is what we spend some of the most time on in the trailers College. We want to hear people out. We don't want to judge them. We don't want to argue as an attorney. You know, stereotypically, if somebody disagrees with us, we want to argue with them and win them over right? But that's the worst thing you can do. So what I do and what my colleagues do, we ask them tell me more. Why do you feel that there are too many lawsuits? Why do you feel that a million dollars for a serious injury is inappropriate? Let me hear that out. And you know, I'll probably agree with it. Even though even if I don't agree with the ultimate principle, I can agree. Yeah, I think there are too many lawsuits. I think it's terrible. But look, you know, this is how we solve problems. So can we at least agree that we want to do the right thing here? Yeah.

Jeff Lewis  35:28 
Hey, you mentioned COVID-19, blowing up? How did COVID-19 impact you and your practice? And do you think you're back to normal now, in terms of the way we're litigating cases,

Kyle Schneberg  35:37 
you know, I don't think anyone's back to normal. In short, I still vividly remember March and April 2020. It was terrible for me, you know, I have two small kids, my wife and my parents are elderly. I had just expanded my business, which was about two years old, you know, we moved into bigger office space, I hired people like in February of 2020. And we were very vulnerable as a business entity. So it was terrifying. Everything slowed down for us, you know, everything came off the rails for several months. So let me start with a good thing. Great thing is moving to remote. I can't tell you how many hearings I've had that ended up being a five minute hearing, I had a hearing two weeks ago, where the defense had two clients didn't pay first fees for one of them. So the judge continued out this hearing for 60 days, that would have been a four hour time commitment. Before the pandemic. Now, it was like a two minute you know, I'm working, they call it a matter and we do it so and the difference there is I'm not hourly. So I don't build for travel. I think a lot of defense attorneys who did Bill for travel, this is affected, I get to work more on my clients cases, rather than sitting on the four or five and traffic. But what I think is really been detrimental to the legal climate is the effect on the employment market. It is very expensive to find people and it's very hard, harder. It's always been hard to find people. But I think it's more expensive and harder than ever, which is a challenge because there's so many man hours that go into these cases. Yeah.

Tim Kowal  37:04 
Interesting. All right. Jeff, do you want to talk about this? Some of our news and tidbits with Kyle?

Jeff Lewis  37:09 

Sure. Yeah. We want to do a follow up on that Trujillo case.

Tim Kowal  37:14 

Yeah. You know, Kyle, we thought that maybe you'd had some insights on this because it deals with a 998 offer, which I assume comes up quite frequently in your practice. We talked about this case, Trujillo versus City of Los Angeles, in Episode 58. It's a October 2022. case, it's a was a published decision out of the Second District Court of Appeal. So it was a case about accepting a Code of Civil Procedure section 998. For of compromise, the court in Trujillo held that the acceptance was not valid because even though it was within the statutory 30 days, and normally the 19 offer if it's accepted within 30 days, that's it judgment has to begin or on the settlement. But that didn't happen in Trujillo, because the acceptance had come after the trial court had already orally granted a summary judgment. So the 998 offer came some few days before the hearing on defendants summary judgment motion at the hearing the court orally granted the motion but before the Judgment actually came down, the plaintiff who had great presence of mind immediately sent over a signed accepted version of the 998 and then sent that up to the trial court to get that entered as a judgment. But the court of appeals said no dice. But so we talked about that, as I said, Jeff and I did but Trujillo that opinion has been bothering me ever since. And I wrote up a summary of the case and outlined all the things that seemed to me not right about the decision. And one of the things that bothered me is that the Court drew a bright line at Oral rulings on msgs reasoning that the bright line was necessary to prevent mischief because you can see why the outcome made some common sense that look, the writing was already on the wall. You that's not what the 988 procedure is for. So I did preventing mischief in that case. But on that score, what about tentative rulings? What if instead of showing up at the hearing and getting an oral ruling granting the summary judgment, there just been a tentative ruling the day before the hearing, Trujillo doesn't prevent the plaintiff from immediately sending back the signed accepted version of the 998 offer then, and I thought court could do what it does with dismissals. There are cases where after a judge has made unfavorable statements at an MSJ hearing, a plaintiff dismisses the case without prejudice in order to avoid award of attorneys fees under Civil Code 1717. The courts have consistently held that once the writing is on the wall, you cannot avoid a prevailing party determination that way and then someone on LinkedIn pointed out to me this is followed the podcast Igor Luca Shin pointed out under federal rule of civil procedure 68, which has the same basic structure is 998. As long as the offer is served 14 days before trial, the 14 day period under Rule 68 As long as it's served within the statutory period and accepted within that period, judgment must be entered on the settlement and there's no escape hatch for oral or tentative MSJ rulings. And there's a recent case on that Kubiak for versus county of Raleigh. So Ninth Circuit opinion back in May of this year 2022, or the defendant had made a rule 68 offer and a few days later the court granted summary judgment. But just as in Trujillo before the court got around to entering Judgment, the plaintiff rushed ahead accepted the offer submitted it to the clerk who, as part of the clerk's ministerial duties entered judgment on the rule 68 settlement and the Ninth Circuit held that's that's it, rule 68, quote, was designed to function in a mechanical manner. A rule 68 offer once made is non negotiable, it is either accepted in which case it's automatically entered by the court or rejected.

Jeff Lewis  40:37 

Think about this, Tim, when you make a 998 offer, if you've already filed your MSJ 75 days, notice for an MSJ, a 998, offers held open by law for 30 days, if you're making that 998 offer the MSJ has already been filed, might have even already seen the opposition papers you're calculating and your 998 offer a chance you might win the MSJ you might not. And so yeah, this result really bothered me and also after MSJ, let's say you're thinking about hiring an appellate specialist to do an appeal, and you want to do a 998 offer in terms of hedging your bets in terms of whether the appeal would be successful or not. This case seems to foreclose post judgment by MSJ. Post judgment nine nine offers to hedge your bets on appeals.

Tim Kowal  41:18 
Yeah, yeah, it does. And I tend to more formalist approach and so I just follow whatever the text of the statute says, and I know the court is trying to avoid and what seems to be an absurdity here, or at least some mischief, I get that. But I tend to agree with the Ninth Circuit's approach here that the rules just be mechanical. And if the legislature wants to provide for exceptions or discretionary in the trial court to avoid unseemly results, then it could do that. But it didn't do that in 998. And it didn't do it in rule 50 rule 68. And yet you have, you know, two jurisdictions, the California Court of Appeal, interpreting 998 in a very different way than the Ninth Circuit, and other circuits have interpreted FRCP 68. I agree. All right. The other

Jeff Lewis  42:01 
tidbit, I want to just announce, we'll just have a link in our in our case notes to this. We talked in an earlier episode about a fantastic amicus brief that was filed by the Youngin. In a case seeking review in the United States Supreme Court about parody how much parody is protected or not. And recently, a Babylon B website, which is a fake news website, filed an amazing amicus brief, it's an interesting read, and we'll put a link to that in our show notes.

Tim Kowal  42:26 
Yeah, you called the Babylon via fake news website.

Jeff Lewis  42:30 
That's what I call it. How would you describe it?

Tim Kowal  42:32 
It's a parody news website. The onion is onion, also a fake news website?

Jeff Lewis  42:36 
Yes. It's fake news. It's not real.

Kyle Schneberg  42:39 
It's scary that we're differentiating in our society between those terms.

Tim Kowal  42:45 
Well, well, it is. Fake News has a definite negative connotation. You're up to no good.

Jeff Lewis  42:50 
Okay. All right. It they are both parody websites.

Tim Kowal  42:54 
Alright, I've come to the rescue of both the onion and the Babylon V.

Jeff Lewis  42:58 
All right. Well, I think that wraps up this episode. Thanks so much, Kyle, for coming in and sharing your wisdom and defending the existence of personal injury lawyers in our society.

Tim Kowal  43:07 

Yeah, and share it for us about bedsore law and national practice that defends inhabitants and their families in nursing homes against negligence and other predations and liability that occurs in nursing homes across the country. So I think you're filling a need there, Kyle. So I applaud that effort.

Kyle Schneberg  43:22 
We love what we do. And I just want to thank you guys for having me on today.

Jeff Lewis  43:25 

Yeah, of course, after you do it, we want to also thank casetext.com for sponsoring the podcast each week, we include links to the cases we discuss using casetext and listeners, the podcast can receive a 25% lifetime discount available if they sign up at casetext.com/CALP.

Tim Kowal  43:40 
And if you have suggestions for future episodes, please email us at info at cow podcast.com. And in our upcoming episodes, look for more guests and perspectives on how to improve your practice. See you next time.

Announcer  43:53 
You have just listen to the California appellate podcast, a discussion of timely trial tips and the latest cases a news coming from the California Court of Appeal and the California Supreme Court. For more information about the cases discussed in today's episode, our hosts and other episodes, visit the California appellate law podcast website at ca l podcast.com. That's c a l podcast.com. Thanks to Jonathan Cara for our intro music. Thank you for listening and please join us again


Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes summaries of cases and appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.

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