The article I wrote for Vegas Legal Magazine’s spring issue—“Death of the American Trial Lawyer”—resulted in a surprising yet encouraging response from readers, both locally and across the country. The publishers informed me that the article has been read online by more than 200,000 viewers, and I have received hundreds of emails from readers requesting more information about the danger that the disappearance of the civil jury trial poses to our justice system. More importantly, readers are asking if anything can be done to reverse this alarming trend.
Death of the American Trial Lawyer
In “Death of the American Trial Lawyer,” I briefly discussed the importance of the civil jury trial to the American justice system and documented the steep decline in the ratio and absolute number of civil cases resolved by jury trial over the past 80 years. In the 1930s, 20 percent of all civil cases in both Nevada and in the federal courts were resolved by jury trial. Today, the average number of civil cases concluded by a jury’s verdict is a quarter of a percent, and in some states it is effectively zero percent. I outlined the major causes of this decline as being Alternative Dispute Resolution (ADR), or what many legal scholars refer to as the privatization of the civil justice system; the exponential rise of litigation costs including out of control, and often unnecessary, pretrial discovery prompted by billable hour requirements; the adherence to a judicial philosophy that case settlement is better than trial, no matter the situation; the rise of case dismissals via summary judgment; federal pre-emption that guts an otherwise viable action; and, the biggest enemy of the American consumer: tort reform.
I suggested that one foreboding consequence of the threat of civil jury trial extinction is that experienced trial lawyers are quickly becoming relics of the past. The drastic reduction of civil jury trials, both in ratio and absolute number, has lead to a lack of understanding of the true settlement value of most cases. This, in turn, has led to a majority of cases settling for less than their true value, and resulting in injured victims losing hundreds of millions of dollars annually in lost compensation to which they are legally entitled. Further, the rapid decline of jury trials negatively effects our democratic form of government. The drastic reduction of civil jury trials ensures that a much smaller segment of the population has the opportunity to participate in jury service. Jury service is the only opportunity most citizens have to directly effect government decisions.
In this article, I outline generally the history and importance of the civil jury trial to Americans, and identify some solutions to revive it.
History and Importance of the American Civil Jury Trial
The civil jury trial has deep roots in our country. The American colonists, governed by English law, believed that trial by jury was a fundamental right, and one necessary to ensure a government by the people, for the people. The right to a jury trial in the administration of justice was considered to be indispensable by our nation’s founders and non-negotiable by the leaders of the American revolution. They believed that the right to trial by jury could be traced back in an “unbroken line” to chapter 39 of the Magna Carta, issued in 1215, which stated: “No free man shall be taken, outlawed, banished, or in any way destroyed, nor will we proceed against or prosecute him, except by the lawful judgment of his peers and by the law of the land.”
England’s repeated attempts to restrict the right to a jury trial in the colonies was a major grievance leading to the Revolutionary War. In nearly every major document and speech delivered before the revolution, the colonists portrayed trial by jury as, if not their greatest right, one that was indispensable. Included in the grievances against King George III listed in the Declaration of Independence was: “[D]epriving us, in many cases, the benefits of trial by jury.” The only other right eventually included in the Bill of Rights mentioned specifically in the Declaration of Independence was the prohibition against quartering troops.
The early state constitutional drafters considered the civil jury trial an important instrument for the protection of individual liberties. The Massachusetts Body of Liberties, enacted in 1641, was the first colonial charter to provide for civil and criminal jury trials by name. By contrast, this same chapter made no mention of free speech rights or freedom of the press, and secured freedom of religion for Christians only. The Bill of Rights in the 1776 Virginia constitution provides that: “[i]n controversies respecting property, and in suits between man and man, the ancient trial by jury is preferable to any other and ought to be held sacred.” The constitution of Pennsylvania followed Virginia’s in affirming the right of trial by jury in civil cases: “[i]n controversies respecting property and in suits between man and man, the parties have a right to trial by jury, which ought to be sacred.” The 1776 constitution of North Carolina, stated: “[i]n all controversies at law, respecting property, the ancient mode of trial by jury is one of the best securities of the rights of people, and ought to remain sacred and inviolable.” Similar language is found in the constitutions of Vermont in 1777; Massachusetts in 1780; and New Hampshire in 1784.
The right to jury trial in criminal cases was secured by the framers when they incorporated it directly into the main body of the U.S. Constitution. However, they did not provide for the right to civil jury trial, or any of the other individual liberties listed in the Bill of Rights. In fact, the U.S. Constitution was nearly defeated over its failure to guarantee the right to civil jury trial. In 1791, during its first session, congress drafted the Bill of Rights, securing the right to civil jury trial in the 7th amendment.
The American system has always considered the civil jury a critical part of our democratic government because more than any other single institution, juries give citizens the opportunity to participate in government, which both educates and enhances their regard for the American system of justice. Jury service is the only place where average citizens can participate directly in government in a way that has a direct impact on events.
Civil jury verdicts are public, and they affect all interests of the community and represent the American idea of justice. Civil juries are often referred to as the “conscience of the community” and they stand as indispensable guardians over corporate negligence and corruption. Civil jury verdicts have led to significant improvements in the safety of consumer products, industrial machines and health care products. They have deterred arbitrary use of power by officials and employers, and the civil jury trial is often the only way for victims of civil rights violations to obtain justice. It is well recognized that product manufacturers, hospitals, pharmaceutical companies, and other defendants in personal injury actions have redesigned products; improved medical care; and have taken other steps to improve or save lives following jury trials and verdicts.
In 2008, my firm and I took on a case with the intent of making far-reaching changes in the pharmaceutical and medical fields. Over 100 Las Vegas residents were infected with hepatitis C as a result of faulty injection practices fueled by the drug companies’ increasing profits at any costs attitude. The drug companies knew the risk of hepatitis C transfer and notified the Federal Drug Administration (FDA) of such risks well before the Las Vegas outbreak; but to save money, packaged their drug in an unsafe and cheaper form. In 2010, the first of several Las Vegas civil jury trials ensued garnering a $505 million verdict for a headmaster and his wife of a prestigious local high school who contracted hepatitis C during an endoscopic procedure. The next verdict we obtained was for $183 million, and the verdict after that was obtained by another firm for just over $100 million. Finally, during the last trial where we were convinced the verdict would be over $1 billion, (and we believe the defense attorneys were equally convinced), the cases were finally settled.
Those verdicts allowed the victims that my firm represented to receive the compensation they deserved. They also allowed other firms in our jurisdiction to obtain settlements higher than they would have, had these trials not occurred. It is well known in our community that the cases that settled early, before these verdicts, settled for significantly less. More importantly, injection practices were changed nationwide, in an attempt to prevent this type of outbreak from occurring, as it had on multiple prior occasions in other parts of the United States and around the world. I am confident these practices would not have changed without these jury trials and verdicts.
As you can see, the civil jury trial is more than a process for bringing a grievance to resolution. It is a pillar of our democracy necessary for the protection of individuals against tyranny, repression, and mayhem, and to deter such injustices in the future. Jurors do their duty with no further ambition that their decisions could result in some future advantage for themselves. Jurors come to court, deliberate, and go back to their homes and work better off for their service. In other words, the civil jury trial system cannot be bought. It is our purest form of justice.
Jurors differ from judges because of the values they bring to cases and the freedom they have to apply those values. And as former chief justice William Rehnquist aptly noted, the right to civil jury trial was guaranteed by our Bill of Rights “precisely because the framers believed that they might receive a different result at the hands of a jury of their peers than at the mercy of the sovereign’s judges.”
In his book We The Judges, the late U.S. Supreme Court Justice William Douglas wrote:
A jury reflects the attitudes and mores of the community from which it is drawn. It lives only for the day and does justice according to its lights. The group of 12 who are drawn to hear a case, makes the decision and melts away. It is not present the next day to be criticized. t is the one governmental agency that has no ambition…it is as human as the people who make it up. It is sometimes the victim of passions. But it also takes the sharp edges off a law and uses conscience to ameliorate a hardship. Since it is of and from the community, it gives the law an acceptance which verdicts of judges could not do.
Juries have more latitude than judges to make difficult and unpopular decisions. They deliberate in secret, they don’t have to explain their decisions, and they are typically protected by rules which limit post-verdict interviews. Studies show that jurors uniformly rate both their experience and the jury system highly while citing their service as being a major and moving experience in their lives. While prospective jurors often grumble over their duty to serve, I am always amazed at how proud and grateful they are for having served.
When disputes are resolved without trial there is no public record, which allows wrongdoers to suppress information about dangerous products, defective drugs, negligent professionals, and other wrongdoing. The United States Supreme Court and constitutional scholars have repeatedly pointed out the right to civil jury trial was embraced by our nation’s founders not because juries were the most economical way of resolving disputes, but, far more fundamentally, because “in important instances…[A] jury would reach a result that the judge either could not or would not reach.” And as one commentator observed, “bringing the law to the people may not make it more just in all cases, but it will make it the law of the people, which is what it should be in a constitutional democracy.”
Thomas Jefferson recognized that a jury of our peers is the most effective check against state power and has been a cornerstone in our judicial system since our nation’s birth. It legitimizes the law by providing opportunities for citizens to validate civil statutes and common law, and to apply them to the facts of specific trials creating a common sense of justice. Further, the United States Supreme Court has recognized in numerous decisions that the primary function of the jury system is to provide a check on official or arbitrary power.
A Call To Action
The American public has remained largely silent over the disappearance of the civil jury trial. Do they not know they have this right, the importance of this right, or that it is presently on the endangered rights list? Tragically, there is scant public education about the history and importance of the civil jury trial to our democratic principals. Notwithstanding the historic and current importance of the civil jury trial, it is one of the least understood features of our judicial system.
Legal education programs teach little about the civil jury institution. Even organizations committed to protecting the Bill of Rights exalt limited public support for our right to civil jury trials. Outside of the members of the bar, there are no programs or efforts to educate the public about the history and importance of the vanishing civil jury that I could find. The American public needs to be informed about this fundamental right and how it significantly enhances their ability to hold accountable institutions and individuals who misuse their power over other people.
In 2014, of the 29 states that reported, the ratio of civil jury trials to civil disposition ranged from a low of 0.06 percent to a high of only 0.55 percent. Today, the average ratio is 0.25 percent and the downward spiral is continuing toward zero. The decline of the civil jury trial should be a call to action for all of us who are concerned about the health of our democracy and the preservation of the 7th amendment.
Critical to resurrecting the American trial lawyer and the civil jury trial is ensuring that our courts are fully funded at both the federal and state levels. Court funding issues have clearly impacted and contributed to the decline of civil jury trials. We need more courtrooms and judges to preside over cases. While the number of jury trials has declined, the courts’ caseloads have significantly increased placing pressure on trial judges to move cases, resulting in those same judges pressuring litigants and their lawyers to resolve their disputes outside the courtroom and without a jury.
If a party loses a jury trial, courts and legislation often impose penalties for such loss, including paying the opposing parties’ attorneys fees and costs. Any penalty imposed after a jury trial that would not be imposed as a result of a settlement of the case is a not-so-subtle infringement of our 7th amendment liberty. This applies to any loser-pay system, including the current offer of judgment rules provided for in the federal rules of civil procedure and in most state civil procedure rules or statutes.
Further, there should be no additional fee for a litigant to request a trial by jury. In many jurisdictions, including Nevada, a fee is required to request a jury trial. In my view, there should never be any financial cost to exercise a constitutional liberty.
Experienced trial lawyers have a responsibility to raise the next generation of trial lawyers. As a result of the mentoring I received as a young lawyer from Mitch Cobeaga, Franny Forsman and Rex Jemison, I have been able to achieve the results I have as a trial lawyer. I believe my partner, Dennis Prince, would agree that his successes were launched, in part, because of our mentoring relationship over the years.
My first job as a lawyer was with a large defense firm. This was a wise route for any new lawyer that wanted to try cases, because at that time, insurance companies and institutional clients appreciated that to have an ongoing pool of experienced trial lawyers from which to chose to defend their interests, they needed to pay for the legal training of the young lawyers. They understood that for young lawyers to get the appropriate training, they needed to permit their defense firms to have both experienced lawyers and a young lawyers attend trials and pay for their time. This provided defense firms with the ability to train and mentor their associates into experienced trial lawyers.
Somewhere along the way, insurance companies and institutional clients lost that foresight. Now, they refuse to pay for young, inexperienced lawyers to attend trial with experienced trial lawyers, eliminating their law firms’ ability to train the next generation of defense trial lawyers. Many large firms are not hiring lawyers right out of law school any longer, and instead, are making lateral hires of more experienced lawyers, compounding the problem of young lawyers not gaining any meaningful trial experience.
A number of states, including Nevada, have implemented mandatory mentoring programs because more and more new lawyers are not finding jobs with law firms that are able to provide them mentoring. Many new lawyers are being forced to go into private practice on their own (or with other recent graduates) with no experience. This, too, is compounding the problem of young lawyers obtaining trial experience. While these mentoring programs are a good start, they are not providing adequate training for new trial lawyers.
The answer may lie in the development of mentoring programs where the lawyer/students are assigned actual cases to litigate with more experienced trial lawyers. Florida has a program of this nature called Lawyers Advising Lawyers (LAL)— formerly SCOPE (Seek Counsel of Professional Experience). LAL provides assistance when a young attorney confronts a problem that is unusual, or when they are in an area of law unfamiliar to them. LAL offers quick access by telephone to an attorney who has experience with and knowledge of the particular problem or area without charge.
Expounding upon this mentoring idea, I would suggest trial lawyers allow access to their trials to young, aspiring trial attorneys. A young lawyer might agree to assist in a trial to obtain the otherwise unobtainable trial experience at no out-of-pocket cost to the trial attorney. These cases could be managed at a low cost, if the experienced trial lawyers were willing to spend time teaching and mentoring inexperienced lawyers in exchange for these lawyers providing free legal work in their preparation and trial of cases. I understand the short-term financial burden this places on the young, aspiring lawyer who is working without pay; however, the experience obtained would set them up for their professional lifetime.
Discovery costs have become a substantial roadblock to civil cases being resolved by a jury. Nearly all information is now stored on computers, which has made discovery (or rather “e-discovery”), in many cases, prohibitively expensive. This is largely caused by the tactic of institutional clients engaging in “digital document dumps.” This tactic is routinely used when injured victims or their lawyers don’t have the resources—or the case does not warrant the resources—to mine these “dumps” for the kernels of information relevant to the case. Trial judges and discovery commissioners must have the discretion, and be willing, to limit this type of discovery and to prevent parties from engaging in abusive discovery tactics. Our federal and states’ supreme courts should consider amending their discovery rules to consider both the resources of the parties and the issues at stake, as well how the digital age has changed discovery, in determining the methods and scope of discovery.
Over the last two decades, experts have been routinely and unnecessarily used in lower value cases. This is now a common tactic used by insurance companies and institutional parties when they face lawsuits filed by ordinary people—in order to drive them to settle their cases for much less than their true value—because the plaintiff or his or her lawyer cannot afford to hire superfluous rebuttal experts. Trial courts and discovery commissioners should have the discretion and authority to limit or not permit expert witnesses in these smaller cases.
The short-trial program has proved to be quite effective in disposing of smaller cases in an efficient and more cost-effective manner. Short trials limit the trial time typically to one day and allocate specific time parameters to each party to present their case. This forces the parties to be more efficient by thinking carefully about how to allocate their limited time most effectively. Consideration should be given to expanding this program to include short trials with three- and five-day limitations. That would capture more cases that parties are not willing or able to try in one day, but would be able or willing to try with three-day or five-day time limitations.
I would argue that the number of jurors in the three- and five-day short trials should be increased to at least six, if not eight. Every study done on this issue shows that the larger the jury (up to 12), the better the decisions. Of course, limiting discovery and the use of experts must be part of this program in order to reverse the decline of civil jury trials. Understand, however, there are cases that are just not appropriate for the short-trial program. The higher the case value, the less likely you should enter into a short-trial as a jury may equate less time addressing the case with a lower verdict.
During the 2015 session, Nevada’s state legislature increased the jurisdictional limit of justice court to $15,000. Nevada’s’ mandatory arbitration program does not apply to cases filed in justice court. Therefore, a case with a value of $15,000 or less can be tried in justice court without going through arbitration and then filing a trial de novo, which is required by the rules governing district court. Further, the award of costs and attorney fees for the prevailing party from a civil jury trial are mandatory in justice court. While, as I delineated above, I do not favor loser-pay sanctions, they do apply in justice court cases giving plaintiffs an incentive to file in justice court.
Although this sounds like self-promotion, I truly believe there is no better way to practice than to collaborate with those you believe to be the best specialized trial lawyers in your jurisdiction. Not only will this give you the backing you need when negotiating your case, but it also gives you the resources and experience of those with whom you associated.
Eglet Prince is built on the concepts of specialization and collaboration. We limit our practice to personal injury, product defect, wrongful death, and insurance bad faith so that we can be the most experienced in those areas. We collaborate with other law firms in the handling of significant injury cases. In some instances, our collaboration is a result of a Goliath-type defense mounted by the other side. More often it results from lawyers seeking us out that want an extra advantage. We are a trial firm that handles complex cases that most other personal injury firms do not have the resources, time or experience to prepare for or try. Collaborating allows the full value of the case to be obtained for the clients. Over 90 percent of Eglet Prince cases are referred to us from solo lawyers and law firms, both locally and from around the world, who ultimately receive a greater net fee by bringing us into the case. We also have collaboration agreements with law firms who we refer smaller less complex cases, and mentor and assist them when necessary in their trials or trial preparation.
There exists an opportunity for several young energetic lawyers or law firms to create collaborative agreements with law firms who can not or will not employ the resources necessary to try these small and mid level cases before juries. In my opinion, it is the only way insurance companies will begin settling these smaller and mid level cases for their actual value. If we work as a team in our legal community, the value of our clients’ cases will be reflected in the offers the insurance companies eventually make.
How many times will we hear the insurance industry “cry wolf” until the truth is revealed to the American public? The cries are always the same:
“Americans are lawsuit happy.”
“Frivolous lawsuits are clogging our courts.”
“Juries can’t be trusted because they routinely return outrageous verdicts that far outweigh the actual damages.”
“Medical malpractice lawsuits drive up healthcare costs for everyone.”
“Malpractice lawsuits are forcing doctors out of practice or to leave our state for states with damages caps.”
“Malpractice lawsuits drive up a doctors malpractice insurance rates, and caps will lower their rates.”’
All of these myths are propaganda invented by big business and the insurance industry, both of which want to scare Americans into relinquishing their 7th amendment liberty.
The infamous McDonald’s hot coffee case is the first example that proponents of tort reform love to cite.
“The lady goes through a fast food restaurant, puts coffee in her lap, burns her legs, and sues and gets a big settlement. That in of itself is enough to tell you why we need to have tort reform,” quoting former U.S. Congressman, Republican presidential candidate and present Governor of Ohio, John Kasich, while he was a member of congress.
The actual facts bear reciting:
When the true facts of the case are reported, most people recognize that this case was neither frivolous, nor was the verdict excessive.
The playbook for tort reform was quite simple. Major domestic and foreign corporations donate vast sums of money to the U.S. Chamber of Commerce and other lobbying groups, and Karl Rove and others direct that money into to the campaign coffers of politicians wiling to back tort reform. However, in 1995 President Bill Clinton vetoed a tort reform bill that favored big business, but would have devastated the American consumer and eroded our 7th amendment rights. Rove and his cronies responded by taking tort reform to state legislatures. The chamber and big business began funding state political races and running ads under the names of associations disguised to look like groups of “concerned” citizens. The ads hammered into the American psyche the lie that frivolous lawsuits were ruining our economy and our country, using the distorted truth about the McDonald’s hot coffee case and other cases they created out of thin air.
Numerous states passed tort reform bills stripping the public of its 7th amendment rights. When state supreme courts started finding many of these tort reform bills unconstitutional because they infringed upon a citizen’s right to trial by jury, Rove and company began a new strategy of targeting state supreme court judges in their re-election campaigns who had upheld the 7th amendment liberty, replacing them with judges who were willing to turn a blind eye to the unconstitutional tort reform legislation passed by the state.
The fact is, Americans do not have a frivolous lawsuit problem. The Rand Institute for Civil Justice, recognized as one of the most independent and respected think tanks in the country, found that only 10 percent of people injured by the actions of others seek compensation and only 2 percent of them file lawsuits. Since 1991, tort cases have made up only 5 percent of all civil cases filed. Additional reports have proved that while our population has grown, personal injury lawsuits have decreased by more than 25 percent between 1999 and 2008 alone, and they represent only 1.3 percet of all civil dispositions. Study after study show that frivolous lawsuits are rare, and nearly non-existent. Even Victor Schwartz, a historically huge proponent of tort reform, admitted: “There is no question that it is very rare that frivolous suits are brought against doctors. They are too expensive to bring.”
Using a campaign of deception, tort-reform advocates have turned injured victims into greedy liars and their lawyers into unscrupulous, opportunistic parasites. What big business and the insurance industry doesn’t tell you is that multimillion-dollar verdicts are rare. The Bureau of Justice Statistics found that the median plaintiff verdict is well under $50,000, and only 5 percent of plaintiff verdicts are a million dollars or more.
Healthcare malpractice settlements and verdicts make up only 0.3 percent of national healthcare costs. The National Association of Insurance Commissioners agrees that the total amount of money spent annually defending medical malpractice claims and compensating victims is $7.1 billion. What is actually driving healthcare costs to rise is preventable medical errors, which account for an additional annual cost of $29 billion of the $2.2 trillion of healthcare spending.
Over the past two decades, the number of licensed physicians has significantly increased and is at an all-time high. The number of practicing physicians per number of people in our country has never been higher. From 1990 to 2010, the number of physicians increased by 40 percent, while the increase in the U.S. population grew by only 18 percent. The number of physicians in every state has increased, and in most states the increase in physicians has either matched or outpaced population growth. There is no data to support the claim that capping medical malpractice damages helps to attract or keep doctors. In reality, there are many more doctors practicing in states without damages caps than in those with caps.
There is no evidence that medical malpractice lawsuits drive up malpractice premiums. The National Bureau of Economic Research found that “increases in malpractice payments made on behalf of physicians do not seem to be the driving force behind increases in premiums.” Further, Americans for Insurance Reform found that “rate increases were rather driven by the economic cycle of the insurance industry, declining interest rates, and investments.” And, damage caps do not lower premium rates for physicians. Insurance companies pay less money for malpractice clams in states with damages caps, but they do not pass those savings on to doctors by reducing their premiums. After the state of Texas passed legislation capping damages in healthcare malpractice cases in 2003, the nation’s largest medical malpractice carrier told the Texas Insurance Commissioner that caps had a minimal impact on premium rates, while the company announced a 19 percent increase in physicians’ malpractice insurance rates. In fact, the American Insurance Association has acknowledged that, “we have not promised price reductions with tort reform.”
Tort reform is a fraud against the American people. It benefits neither the public, nor healthcare providers. It simply increases profits for insurance companies and insulates domestic and foreign corporations from compensating people whom they have caused harm. The fraud must be exposed, and all tort reform legislation repealed.
When a person who is injured by the negligence or defective product of another takes their case to trial, they are engaging in an extraordinarily heroic act. To file a lawsuit and litigate through trial is not a simple undertaking. The plaintiff will be attacked by the defendant in all sorts of ways, and the case will likely drag on for years. In the meantime, their life will be put on hold. The willingness to go to trial to gain justice is heroic. This truth must be made known to our citizenry. The public must be made to understand that when a person wins a civil case, they win it for all of us, as well as gaining justice for themselves.
10. Predictive Analytics
“For the rational study of the law the black-letter man may be the man of the present, but the man of the future is the man of statistics and the master of economics.” — Justice Oliver Wendell Holmes Jr.
Predictive analytics is technology that learns from experience and from data to predict the outcome and/or behavior of individuals in order to drive better outcomes or better decisions. It is essentially “machine learning,” which is exponentially getting faster, better and more efficient. Computers can now look at tendencies and trends and can actually learn. By leveraging the quantitative strength of computers, lawyers can more accurately forecast how events will play out in a case and allow lawyers and their clients to avoid costly mistakes, get a better vision of the strengths and weaknesses of a case, and increase the odds of obtaining a favorable outcome.
Predictive analytics uses advanced machine learning algorithms and proven rigorous statistical methods to forecast the probabilities of various outcomes. The probability forecasts produced can aid settlement negotiations and decisions about trial. Potentially, this could save billions of dollars in settlement errors and mitigate the risks of trial. Statistics show an estimated 60 percent of legal cases have settlement value errors. As I noted earlier, 99.75 percent of civil cases are settled. Jury trials today are avoided at all cost due to the perceived unpredictability of a jury.
The practice of law includes prediction. Lawyers predictively answer client questions daily such as, “What are the odds of winning this case, and how much do you think this will cost me?” Even Justice Holmes envisioned over a century ago that “the number-crunching masters of economics” will trump the vast majority of lawyers who still rely solely on experience, historical case information, and intuition to predict the outcome of a case. Even the most exceptional lawyers are inherently limited in their capacity to retain and process the information necessary to make well-informed judgments. Computers, while lacking the ability to frame interesting questions or draw conclusions as lawyers, are far better at storing, processing, and summarizing large volumes of information.
The technological advancement in computing power and data science has ushered in a new era…the era of Big Data. Google, Facebook, IBM, and countless other technology companies, use these new capabilities to market products and ideas with a level of effectiveness never before seen. Predictive analytics is now universally accepted and used widely by many industries to predict outcomes and make better decisions, and was a major factor in predicting the last presidential race. It is imperative that trial lawyers catch up to this data-centric approach found in almost every other industry. The common practice of heavy weighting historical trial outcomes fails to adequately capture present conditions, hampering the accuracy of its predictions. Predictive analytics, unlike historical performance data commonly used for this purpose, takes into account current public sentiment. Real-time predictive analytics provides a great advantage, creating a tool that allows trial lawyers to test the core case arguments identified during discovery against a series of juries, representative of the available jury pool in the location where the trial will take place. A resulting predictive model can be used to inform the settlement negotiations and aid in the decision of moving forward to trial. When cases proceed to trial, the resulting model can be used during jury selection, to insure maximum probabilities of a favorable decision and the largest possible verdict.
When Big Data supplements a community values and beliefs survey contained within a typical jury questionnaire, more information about a juror’s community is available to the lawyers. This increase in information, in turn, provides trial lawyers with more information about what juror traits are beneficial. Research shows that an individual’s online presence can predict that individual’s personality, and Big Data provides more data points on how to determine which individual jurors should or should not be selected. Once the parties determine a community’s attitudes and values, trial lawyers can determine what qualities and traits are desirable in jurors within that community. Trial lawyers can then combine these qualities and traits into so-called “bad juror” or “good juror” profiles to create “persona jurors.”
If we as trial lawyers can pool our data and keep a collective bank of case information and trial and settlement outcomes, the better and more accurate all outcomes become. Data is always predictive, and as the data we collect grows, we can put that into a predictive model to extract the “golden egg,” or prediction model, that will be the key to making better decisions. The more data we collect and input, the higher the statistical significance the outcomes will be and the more we can apply this to building our trial stories, and forecasting trial outcomes with more accuracy.
Intuitive and experiential expertise is losing out to number crunching. In fact, that competition has already been lost. Quantitative analysis has been openly embraced in virtually every major business sector…except law. Shortly, there will be a seismic shift in the legal profession. The smartest, savviest lawyers are now supplementing their practice experience and intuition with insights obtained from big data to best inform their judgment. Predictive analytics and data-driven strategies will be paramount to the legal industry of the not so distant future. Technology that leverages legal data will move the practice of law forward in new directions. There are more tools than ever to facilitate this paradigm shift. Big data and predictive analytics can be used by trial lawyers to improve settlement evaluations, fine-tune trial stories, and make sound decisions of whether to settle or take a case to trial.
For any of you “Trumpsters” who haven’t read a book or current events journal in 30 years, and get all of your information from watching “the shows” and movies, I’m talking about “Moneyballing” trial practice.
Going back is not an option. Moving forward is always the only path. Professionals, just like people, who live in the past and long for the so-called good old days, are already dead. They just don’t know it yet.
It has been nearly 30 years since I walked into a courtroom for the first time to try a case. Yesterday’s art and science of trial work is as extinct as the Yellow Pages. When I began trying cases, my entire trial presentation was hand written on yellow legal pads. My demonstrative exhibits were blow-ups glued to white cardboard. All letters, legal briefs and pleadings were dictated into hand-held mini cassette recorders and the tapes were transcribed by legal secretaries. I did all my legal research in an actual library with real books. We had to actually file hard copies of our pleadings at the courthouse and physically serve them on opposing counsel. Today, my firm uses no paper, except when the trial courts makes us present a set of exhibits on paper for their records. We have no legal secretaries, only paralegals. All of our lawyers do all their legal research from their computers and type their own letters (or more often, emails), legal briefs and pleadings. We take nearly all out-of-town depositions from the comfort of our officers or conference rooms using digital conferencing. Trials are prepared and presented with laptop computers, iPads and massive digital monitors, using trial presentation software and applications…many of which we have developed within our firm. Instead of legal secretaries, file clerks and runners, we employ trial presentation and animation designers, software programmers and e-discovery miners.
Trying to go back is like wearing a 30-year-old suit that looked good when you were 27. It doesn’t fit, the fabric sucks, and you will never look 27 again, so go buy a new suit that fits the body you have today. We all need to adapt to the present and anticipate our future circumstances. We must re-think the way we prepare and try cases, as well as how we manage the business of law, if we want to stay relevant and survive the future of trial practice.
I believe in the jury trial. I define who I am as a “trial lawyer.” But, I also understand that in order to resurrect “The American Trial Lawyer,” we must possess not only the will to try more cases, but the willingness to change the way we try them.
Robert Eglet has tried more than 120 civil jury trials to verdict, including some of the largest personal injury verdicts in the country in 2007, 2010, 2011 and 2013. Eglet was named National Trial Lawyer of the Year in 2013 by the National Trial Lawyers Association and National Lawyer of the Year in 2010 by Lawyers USA. He has been honored twice by the Nevada Justice Association as Trial Lawyer of the Year (2005, 2012) and in 2013, Eglet received the National Thurgood Marshall Fighting for Justice Award. The National Law Journal has named Eglet’s firm as one the “12 Best Plaintiff’s Law Firms in the Country” and one of the “50 Best Trial Firms in America.” Eglet lectures regularly on trial practice and innovation in the courtroom.\
In May 2015, Nevada Governor Brian Sandoval signed into law what was expected to be a pivotal piece of legislation for Nevada’s addiction-recovery community: (SB) 459, otherwise known as the Good Samaritan Drug Overdose Act.
The two-part law granted further access to an overdose antidote, naloxone, while extending legal protection to those who inform the authorities about a suspected drug overdose. Under the new law, law enforcement responding to an overdose distress call cannot criminally penalize “good Samaritans” for any low-level criminal offenses they may discover at the scene. This includes supervision violations, alcohol law violations, simple drug possession, drug paraphernalia possession, and being under the influence. (It should be noted, however, that the law does not protect good Samaritans from more serious offenses, such as selling or trafficking drugs.)
A Law for Saving Lives
Advocates of the law had hoped that immunity from prosecution would encourage drug users or overdose witnesses to seek immediate help for themselves or others rather than wasting crucial minutes or hours fretting over the potential legal consequences.
To date, 35 U.S. states have enacted similar Good Samaritan Overdose Immunity Laws…and many considered Nevada long overdue to initiate its own. Nevada’s drug overdose mortality rate is the fourth highest in the nation, according to a 2013 report by Trust for America’s Health (TFAH). Between 2009 and 2011, the drug poisoning fatality rate in Nevada was 20.7 per 100,000 people. This represents an 80-percent increase from where the death rate stood in 1999, when 11.5 people per 100,000 fatally overdosed.
Naloxone: Effective Overdose Antidote
Many in the addiction-treatment industry were equally enthused about the law’s expanded access to naloxone, the medication that reverses the effects of an opioid overdose. Naloxone is considered incredibly effective at treating accidental overdoses; so effective, in fact, that some have labeled it a “silver bullet.” It’s also favored for its reputation of being safe and non-habit forming.
“One of the benefits of naloxone is that it has no adverse side affects,” stated Mel Pohl, MD, DFASAM opioid specialist and medical director at Las Vegas Recovery Center (LVRC). “This effectively eliminates the risk of someone causing harm by administering the medication to someone who may not need it to reverse opioid overdose. It’s also fast acting and easy to use. It can be administered through an auto–injector or through a nasal spray—no training is needed. It is truly a life-saving medication.”
The new law allowed physicians to prescribe the overdose antidote to friends and family members of opioid users, a practice that was previously discouraged due to restrictions on third-party prescriptions. Community members who regularly come into contact with opioid abusers, such as first responders (law enforcement and fire fighters), were also granted access.
An Unsung Hero: Where the Law Stands Now
Although it has been 15 months since the law was passed in Nevada, relatively few people have been made aware of its existence, including those with the potential to be most affected, like law enforcement officers and the friends and family members of opioid abusers.
“The intent of the law was to save lives,” says Foundation for Recovery (FFR) Recovery Advocate Heidi Gustafson. “And that hasn’t happened.”
According to Gustafson, an advocate for naloxone, there was no “post-passage plan”.
“The law was passed and then that was it,” she explained in an interview. “There was no education component or marketing plan to accompany it, and that has resulted in a lot of confusion.”
One example Gustafson cited was insurance coverage. “On paper, naloxone is covered by Medicaid, but many pharmacies and consumers aren’t aware of this,” she said.
In other states where similar laws have been enacted, the overdose fatality rate has been successfully reduced. As of 2014, over 150,000 people across the United States have received naloxone kits and training, and over 26,000 overdoses were reversed, according to reports from the Centers for Disease Control and Prevention.
Doctors Hesitant to Prescribe
Another roadblock to the law’s success in Nevada has been doctors’ hesitancy to prescribe naloxone. Though naloxone is not harmful and poses no risk for abuse, it could be rendered ineffectual if it isn’t administered properly. Doctors are concerned that if the drug fails to work in an emergency, they’ll be held liable and could face malpractice lawsuits.
Physicians also worry that recommending an anti-overdose medication will offend their chronic pain patients. Some also believe the law places an unfair burden on doctors to determine which of their chronic patients are at risk of overdose and which aren’t. Pharmacists also face a similar dilemma. While they are sympathetic to the opioid addiction epidemic, as Gustafson explains it, “doctors and pharmacists don’t want to be interventionists.”
The recovery community has struggled to correct the public’s perception that naloxone enables and allows addicts to use more successfully. Mental health experts view addiction as a brain disease and believe people who misuse opioids have little control over their actions. Despite years of published research supporting this claim, however, misinformation and stigma surrounding addiction still persists. “We need to keep people alive long enough for them to seek a new way of life through recovery,” says Gustafson.
Is a Standing Order the Solution?
Gustafson and other local advocates have been rallying to remove individual physicians from the equation entirely, opting instead for a standing order signed by Nevada’s State Health Officer. The standing order would allow pharmacists to distribute naloxone without a prescription and grant anyone the ability to easily access naloxone, in much the same way they do a flu shot. Instructions are included with each naloxone kit that detail how to administer the drug in the event of an emergency and many organizations, such as the Foundation for Recovery, offer trainings for those looking for a more in-depth education.
Most states have enacted statewide standing orders with great success and it is the hope of Gustafson that Nevada will soon follow suit.
The Need for Education
Although a standing order and education for healthcare workers may be a good first step, a community outreach that extends beyond the medical industry is vital if this law is to have a life-saving effect.
“It typically takes two to three hours to die from an overdose,” states Gustafson. “If everyone carried naloxone with them, can you imagine how many deaths we’d be able to prevent?”
Gustafson then recounts a story of a woman she knew who suffered from an opioid addiction. A few months ago, the woman overdosed and rather than calling 911, her friends drove her to a bus stop and abandoned her there. Laying there unconscious, she died of her overdose.
“If they’d have known about the Good Samaritan Drug Overdose Act, maybe they would have driven her to the hospital instead,” said Gustafson with a shake of her head. “And maybe she’d still be alive today.”
As of July 21, 2016, the Nevada Pharmacy Board unanimously adopted naloxone regulations. These regulation were necessary to implement certain provisions of the states SB 459. These regulations clarify for Nevada pharmacists’ procedures for dispensing naloxone to patients, including those with third-party prescriptions. Final approval is needed by Legislative Commission. In the meantime, advocates will continue to work toward full implementation of the law.
For those interested in learning how to administer naloxone and prevent an opioid overdose, please contact Foundation for Recovery at 702-257-8199. Foundation for Recovery, located in Southern Nevada, offers a comprehensive one- and two-hour training for groups of 20 or more.
Las Vegas Recovery Center (LVRC) also offers help to those wishing to seek recovery from an opioid use disorder. With campuses in northwest Las Vegas and Henderson, LVRC is equipped to help chronic pain and addiction sufferers across the Las Vegas Valley. Visit http://lasvegasrecovery.com/ or call 702-515-1373 to learn more.
According to the Centers for Disease Control (CDC), 34.9 percent of adults in the United States are obese. Simultaneously, a 2015 report by Stephens, a financial services firm, about the rise of high-end, boutique health clubs such as Pure Barre and Orangetheory Fitness—both of which have presences in Las Vegas—estimates the size of the domestic health club market at $22.4 billion. These new entries into the Las Vegas market are competing for customers with the long-standing Las Vegas Athletic Club, with its numerous locations throughout the valley, and high-end players Lifetime Athletic and David Barton Gym.
On their face, the CDC statistics and the Stephens report seem in conflict with one another. A national obesity rate of nearly 35 percent—which does not even include those merely classified as “overweight”—initially seems at odds with a robust and growing fitness sector. Spending time in and around the fitness industry, though, reveals that it is not immune from the broader socioeconomic trends facing the United States.
As with economic opportunity, health and fitness within the United States appears to be amid a great bifurcation. Part of a common narrative dating back to the Occupy Wall Street movement, a widening chasm of fitness is emerging between the haves and the have-nots.
Those who have the ability to prioritize their health, or who allocate their assets to make it a priority, have created a health and fitness market that operates much like any other luxury market. Gyms, personal trainers, supplement companies, and even some doctors, are no longer merely providing a fungible service, but are giving customers an experience. Consumers are not merely purchasing a gym membership or a product, but an entire lifestyle.
The Rise of The High-End Gym
Historically, physical fitness was a requirement of the intelligentsia and rulers of any society, rather than just for the warrior class. As Socrates said: “No man has the right to be an amateur in the matter of physical training. It is a shame for a man to grow old without seeing the beauty and strength of which his body is capable.” This wisdom echoes through the ages: Renowned Japanese author and nationalist Yukio Mishima wrote passionately about the impact weight training had on his life in his autobiographical essay, Sun and Steel. And Henry Rollins, singer for the notorious punk band Black Flag, echoed Mishima in his own revealing story of how lifting weights transformed his life, “Iron and the Soul,” in Details magazine in 1994.
While the explosion of high-end gyms over the last 16 years has been unique, professionals have long been concerned about health, vitality, and appearances. Dr. Gordon Patzer’s 2008 book, Looks: Why They Matter More Than You Ever Imagined, summarizes extant research about the tremendous importance physical appearances have in the workplace, including for legal professionals. An entire chapter of Patzer’s book, titled “Rendering Judgment: How Looks Affect Courtroom Results,” is dedicated to the importance of the attractiveness of attorneys, parties, and even jurors, on the judicial process. It is little wonder, then, why service professionals including doctors, lawyers, salespeople, and others sought out facilities that would suit their needs.
As fitness research became more widely available on the Internet, fitness myths of the 1980s and 1990s—epitomized by “low fat” foods and Olestra—yielded to a collective realization that there was no substitute for lifting weights. The fitness industry rose to meet these demands in numerous forms, from exclusive weight rooms to organized classes. The result is a mix of strategies that shows no signs of stopping.
Among traditional gyms that have sought a higher image, Las Vegas’ City Athletic Club has been a locally owned and operated participant since 2011. Its owner, Jea Jung, the son of a world-renowned Tae Kwon Do instructor and himself a former bodybuilder, brought his lifetime of experience in the fitness industry to open his gym in Las Vegas. (In addition to owning City Athletic Club, Jung’s commitment to fitness also led him to create J-Bells, an alternative to dumbbells for free weight use.)
Jung believes that Las Vegas is something of an anomaly to the national fitness market. As a bodybuilder with a background in the fitness industry, Jung has been able to operate a premium gym in Las Vegas in a manner that would be impossible in other cities. His years in the fitness industry gave him a level-eyed realism in confronting this market: Rather than operating a volume-oriented, 10-dollar-per-month gym, he set his sights at the top of the market while being realistic about what doing so requires. In an era where some gyms seek to lower prices to compete with inexpensive gyms, Jung searches for ways to take his facility to the next level, without the capital backing of a national brand such as Lifetime Athletic or Equinox.
In addition to people who can freely spend the funds needed for a gym membership, Jung is acquainted with a different consumer base: those who will spend their last dollar for fitness. While the affluent may focus on experience, those who make serious sacrifices for their fitness also want the best return on their investment. In Jung’s view, both priorities contribute to demand outstripping the supply of quality fitness facilities, allowing the prices to increase upward. As in other fields including law, and as documented in Robert Cialdini’s book Influence: The Psychology of Persuasion, high prices are a boon to marketing an in-demand service. For gyms, high rates may feed into another source of demand for their services.
Jung sees a pervasive effect of social media, particularly Instagram, in creating the demand for high-end gyms. Bragging rights, such as the ability to claim membership at a certain gym, checking in to it on Facebook, or posting photos taken there on Instagram, become more important than the gym itself. Like other luxury products, the gym experience becomes a source of ego fulfillment and validation; working out is secondary to the esteem and self-worth that members obtain from informing others of where they are, and where they belong. While the laws of supply and demand inform price, the culture of vanity—accelerated by social media’s ubiquity—plays an outsize role in driving demand.
Departing from the traditional gym setting, other forms of fitness training have gained popularity in the last decade. One of the most prominent examples of alternative fitness (and most explosively popular) is CrossFit—the trade name for a series of demanding group workouts that include free weights, bodyweight, and cardiovascular elements that change daily. According to Forbes, there were more than 11,000 officially licensed CrossFit gyms in 2015. In 2005, there were only 13.
Some gyms, including City Athletic Club, have CrossFit components to their facilities. CrossFit gyms more commonly stand alone due to the equipment and space needed, which differs from typical gyms and often includes gymnastic rings and open areas to perform lunges, farmers walks, and the dreaded burpees. The official CrossFit website indicates that there are 37 licensed CrossFit gyms in the Las Vegas and Henderson area as of July 2016.
The CrossFit experience is premium, and carries a premium price tag. At Freestyle CrossFit in Downtown Las Vegas, regular monthly memberships start at $120, and can go up to $160. In Southwest Las Vegas, CrossFit Mountains Edge has similar pricing, running from $135 to $170 per month.
While CrossFit has been controversial in some circles, whether for reasons of cost or the debilitating injuries it can inflict on its adherents, others see CrossFit’s aggressive pricing as a desirable feature. In a 2015 entry on Philly Law Blog, Philadelphia attorney A. Jordan Rushie took issue with the view that CrossFit is too expensive. “[Y]ou’re hanging around other people who make enough money to spend it on a gym that costs $150 per month. Not $10 per month. Who do you think will make better clients? Who do you think will have better referrals?” Beyond camaraderie, the networking opportunities provided by treating fitness as a luxury pay for themselves. The costs of fitness do not end in the gym, though; instead, they merely begin there.
Supplementing the Labor
It is increasingly rare to find anyone whose fitness regimen begins and ends at the gym. Reliable numbers on what percentage of gym-goers use supplements, ranging from vitamins and minerals to protein shakes to pre- and post-workout products, are hard to find. Still, there is no absence of evidence of the tandem rise of gyms and the supplement industry. Many nutrition and supplement stores in Las Vegas, such as Nutrition Rush, are located nearby if not adjacent to gyms. Lifetime Athletic and City Athletic Club both have supplement stores and health bars within the gym itself. Even without direct, causal data, the supplement industry’s size and growth closely tracks that of gyms and health clubs in the recent past.
Because the supplement industry largely is self-regulated—the FDA’s hands-off approach to nutritional supplements standing in stark contrast to its treatment of prescription drugs—there is little publicly available or verifiable information. On the low end, TABS Group estimated that the domestic supplement industry was worth $11.8 billion in 2015. Nutrition Business Journal hotly disputed the TABS Group valuation and estimated the United States’ industry’s size at $36.7 billion.
Consulting firm McKinsey & Company estimated in a 2013 report the global supplement market was worth $82 billion. The McKinsey report further indicated that sales increased by $6 billion in the United States alone from 2007-2012. Known transactions support an 11-figure valuation for the domestic supplement industry. In 2008, international nutritional ingredients group Glanbia Nutritionals acquired Optimum Nutrition, a trusted supplier of protein products, for $315 million. Glanbia also owns one of Optimum’s erstwhile competitors, Bio-Engineered Supplements and Nutrition, also known as BSN.
The Internet has been a leading force in both selling and disseminating information about supplements. As noted in the McKinsey report and Nutrition Business Journal’s valuation of the supplement industry, Internet sales of supplements have growth significantly over the past 10 years and contribute a significant chunk of the industry’s size. From established retailers such as Amazon, to start-up sellers such as Vitacost, iHerb, and Lockout Supplements, numerous channels are available for purchasing supplements discreetly.
Knowing what supplements are needed is a precursor to buying them, even over the Internet. In recent years, websites and e-books have risen to fill this gap. Established in 2011, Examine.com has grown into an easy-to-navigate and stunningly deep source of supplement information. Containing more than 50,000 citations to scientific research, Examine evaluates the claims associated with various supplements, vitamins and minerals. Prior to buying, users can assess things such as whether magnesium actually increases aerobic exercise performance (it does), or if ashwagandha reduces anxiety and cortisol, the stress hormone (it does). Despite the website’s enormity, it is far from the only source of information about supplementation.
P.D. Mangan overcame chronic fatigue by teaching himself about nutrition and supplementation. Today, at age 61, he regularly lifts weights, has a formidable physique, and maintains the website Rogue Health and Fitness where he posts regular articles about his health research. He also has published books including Stop the Clock, about anti-aging techniques; Best Supplements for Men’s Strength, Health, and Virility; and most recently, Dumping Iron—warning about the underreported cognitive and physical problems caused by excessive iron in the body.
As a result of his books and online writing, men and women reach out to Mangan to further discuss their conditions. In an e-mail, Mangan estimated that approximately 90 percent of the people who contact him were male with “decent” middle- to upper-middle class income. Observing that people interested in health have above-average income, Mangan’s readers are also brighter and more intellectually curious than average in order to work through his scientific books and their technical language.
While Jea Jung anticipates that people who use supplements spend approximately $200 per months on them, Mangan’s number is more conservative, at $30 to $50 dollars per month. Jay Campbell, a fitness athlete and former Las Vegas resident, estimates that affluent supplement buyers may spend up to $300. Personally, Campbell focuses on getting the highest return on what he ingests, and his monthly supplement spend comes in at under $150. When it comes to supplements, Mangan’s belief is that the more expensive a supplement is, the less necessary it is. For weightlifters, Mangan expects the staples of protein powder, creatine, zinc and magnesium to be affordable. As Mangan noted, though, name-brand products are more expensive, likely contributing to the discrepancy between his monthly budget and Jung’s.
Mangan sees huge potential growth in the supplement industry as more anti-aging research is completed and publicized. With an undertone of optimism, Mangan notes that men want good physiques, and are coming to understand that obtaining one is within their reach. While he believes that the past few decades of health advice have been nearly unfounded, including low-fat and high-carb diets, and vegetarianism, Mangan is confident that people are finally seeing that supplements work and are worth the expense.
Dr. Brett Osborn affirms much of this information in his 2014 book Get Serious. Osborn, a Florida-based neurosurgeon, provides guidance about weight lifting, diet, and supplementation in Get Serious. Chapter 8 of the book is dedicated entirely to supplementation. While Osborn makes it clear that his writings are not medical advice, and readers should confer with a doctor before taking any supplements, he provides his opinion about the most effective supplements on the market.
Appearing shirtless on the front cover of Get Serious, Osborn’s appearance is a testament to his recommendations. A number of entries in Osborn’s book and Mangan’s recommended supplement list overlap, including vitamin D3, magnesium, and omega-3 fatty acids. Supplements alone cannot build a physique, but they can make it easier to obtain. Moreover, they can improve mood, cognition, and stamina, which even an improved appearance is not guaranteed to do.
In addition to complementing a rigorous workout routine, dietary supplements also undo the effects of the modern diet and pharmaceutical industry. Both Jung and Osborn lay significant blame for the poor state of national health at the feet of the pharmaceutical industry. As Osborn wrote in Get Serious, “[C]ompanies like Pfizer and Merck thrive on the treatment of illness. There is money in disease, not health. Due to this, supplement manufacturers have been vilified and touted as the mortal enemy threatening to rob the gravy train. And that’s exactly what it is.”
Even as the supplement industry gains credibility based on published research, supplements alone may not be enough to overcome the effects of pharmacology, whether directly ingested or absorbed through the environment. Academic research has documented the adverse effects of residual hormone mimickers from birth control, as well as diabetes medication, on wildlife in the Great Lakes. As a result, it may be impossible for some people to reach optimal health only through supplementation. Additional measures may be needed to obtain an ideal hormonal balance, and today they are more widely available than ever before.
The Hormone Replacement Therapy Explosion
Juan Ponce de León spent the early 1500s, right up until his death, searching pre-colonial Florida for the fountain of youth. Taking ships and many men with him, he scoured the undeveloped new world in search of a cure for aging. Today, we know that this remedy can be found inside of a hypodermic needle. What’s more, it is increasingly available to those who qualify. Like many leading-edge fitness and health trends, though, hormone replacement therapy is not cheap, and requires a patient’s dedication to such a regimen.
For years, testosterone replacement therapy advertisements have filled Las Vegas’ billboards and airwaves. Speaking mostly in euphemism, they identify the key symptoms of low testosterone: lack of energy, virility, and stamina. These concerns understate the full range of functions affected by testosterone, though: Proper testosterone levels improve mental clarity and sharpness, fat loss, confidence, and even mood.
Jay Campbell’s passion for health and fitness led him to literally write the book on testosterone replacement therapy in his early 40s. In 2015, Campbell released The Definitive Testosterone Replacement Therapy Manual. Today it is the No. 1 book about testosterone replacement therapy of all time. In his book, Campbell covers the extreme basics of testosterone, such as what it is and its naturally occurring benefits, to debunking junk studies on the risks of testosterone, the ethical objections to testosterone replacement therapy, and the reality of andropause—a “male menopause” where the body’s testosterone production drops off precipitously. Campbell goes on to discuss the forms of available testosterone therapy, from patches and creams to injectables, and possible regimens for doctors to prescribe.
For an optimum protocol, Campbell observes that injections of testosterone propionate every other day, or the longer-acting testosterone cypionate every three to seven days, yield the best results for most users. He is also forthright about the additional care any testosterone replacement therapy will require. While testosterone replacement therapy is not a reliable form of male birth control, it can negatively affect users’ fertility. As a result, some men using testosterone therapy may wish to use HCG to avoid fertility complications and as thus see all of their sex hormone levels skyrocket, including estradiol, a form of estrogen. Estradiol inhibitors such as anastrozole, commonly sold under the name Arimidex and used to treat some forms of breast cancer, then enter the equation to ensure the proper ratio of testosterone to estrogen. These considerations come before accounting for how testosterone may increase users’ hematocrit, a measure of the blood’s thickness, and require monthly blood donations to maintain it at a healthy level.
Striking this balance takes considerable investments, time and money. Patience, comfort with needles, regular blood work, and a prescribing physician who is well-versed in this increasingly popular area of medicine are all necessities. As one would expect, demand for medical professionals with deep, substantive knowledge in this area far outstrips supply, and their services are priced accordingly.
Deeply familiar with the national testosterone replacement therapy market, Campbell estimates that the cost of doing a regimen the right way costs $250 to nearly $400 per month. In his view, the benefits are so profound that the cost is more than justified. Not merely an expense, testosterone replacement therapy is an investment in one’s future. As testosterone levels fall, those who maintain normal levels will prosper over those who succumb to the decline of aging under the pressures of the standard American diet and pharmaceutical industry.
In The Definitive Testosterone Replacement Therapy Manual, and later in an e-mail, Campbell expressed his belief that the world was in the throes of a testosterone-deficiency crisis. Even mainstream medicine has recognized a generational decline in testosterone within the United States. A 2007 study published in the Journal of Clinical Endocrinology and Metabolism observed an age-independent decline in total testosterone from 1987 through 2004 among 1,532 men. In short, testosterone levels were not falling just because the test subjects aged; for reasons unknown to the researchers, median testosterone levels declined almost 20 percent in fewer than 20 years among the randomly selected test subjects.
In Campbell’s view, both men and physicians are unaware of these changes and their implications. Because of the benefits normal testosterone levels provide, Campbell is enthusiastic about informing men about the benefits of testosterone replacement therapy, and helping them overcome their self-doubt and moral quandaries regarding the treatment. Even with the costs, initial blood work, and lifetime commitment that a successful testosterone replacement regimen requires, Campbell strongly believes it is most men’s best bet for achieving their potential.
While men have received much of the attention of hormone replacement therapy, there is a burgeoning market for women’s hormone replacement therapy. Campbell’s wife, Monica Diaz, is a Southern California real estate agent and also a fitness advocate. Beginning in early 2016, Diaz began turning her attention to the market for female hormone replacement therapy. In addition to creating an advice group dedicated to the topic, she presented an hour-long group discussion on YouTube and her blog with Campbell, Fabulously Fit Over 40, going into detail about the tests needed for female hormone therapy, what kinds of hormones are recommended, and who should consider if it is right for them.
In Campbell’s observations, the potential and actual markets for women’s hormone replacement therapy far surpass those for men. One of the reasons for this observation is that women can begin some form of hormone replacement therapy around age 30, while men normally must wait longer toward their 40s for their testosterone levels to drop enough to warrant medical intervention. Another reason for the women’s market size is the fact that insurance companies, better versed in the realities of menopause and other aging issues facing women, will pay for many forms of women’s hormone replacement therapy. In contrast, testosterone replacement therapy normally is an all-cash affair. Even for women who pay cash for their hormone replacement therapy, Campbell’s work with Diaz reveals that those seeking this therapy are what Campbell describes as “women of means,” generally earning $75,000 per year or more.
For both sexes, there is a final option to wind back the clock of time: human growth hormone, or HGH. While other hormone-replacement regimens can be done for a few hundred dollars per month, HGH—the pinnacle of hormone replacement—is markedly more expensive, whether with a prescription or through the black market. Yet, its effects over a range of uses, from cosmetic needs to injury recovery, make it very attractive.
HGH’s potency as a hormone-replacement therapy has earned it a lucrative position in the black market. Often prescribed to HIV patients to prevent “wasting,” pharmaceutical-grade human growth hormone can be obtained on the black market—a trend that ESPN first observed in December 2004, noted in the article “Fountain of Youth in a Bottle.” Despite significant crackdowns on black-market distribution of HGH and other HIV/AIDS medications, as reported by Community Access National Network in March 2014, the practice continues today.
By 2012, HGH had escaped from the fitness underground. In an article titled “Hollywood’s Vial Bodies,” Vanity Fair detailed the pervasive use of HGH among Hollywood celebrities and studio executives—largely under condition of anonymity—to recapture younger looks and lost energy. HGH was confirmed to not just be for bodybuilders, but for women in the Hollywood social scene as well who cited improvements to their skin and hair as treatment benefits. These benefits came at a price, as a year of HGH treatment cost more than $10,000.
Despite its high cost, the present day is a relative golden age for HGH. Prior to the FDA’s approval of recombinant, or synthetic, HGH in 1985, the hormone had to be removed from cadavers in minute quantities; obtaining usable quantities of the hormone was equally costly and disturbing. With its new, relative availability, the market for HGH has grown, with healthcare providers acting to feed demand.
One of the foremost providers of hormone therapy in Las Vegas is Cenegenics. For years, the company has been promoted by the distinctive image of Dr. Life, a physician in his 60s who had the physique of an amateur bodybuilder. On its website, Cenegenics offers men monthly shipments of prescribed hormones and supplements. While Cenegenics does not readily disclose its pricing schedule, other online reviews of the company indicate that its hormone replacement therapy and supplement regimen—including HGH, if prescribed—costs hundreds and potentially even thousands of dollars each month.
At a price tag in excess of $1,000 to $2,000, each month, HGH is unequivocally a luxury good. Components of the fitness market may perform like luxury products because of the resources devotees are willing to commit to their passion. The same is true for other products that attract their own fanatics, as BMW devotees pay tens of thousands of dollars for their cars, and modular synthesizer collectors pay thousands of dollars a year for new modules. For an elective, recurring monthly payment of $1,000 to $2,000 per month, there is little question as to HGH’s position as a luxury good…however it is obtained.
Professionals, and particularly lawyers, are increasingly aware of the mind-body connection. Kenneth White, partner at the Los Angeles-based Brown White & Osborn LLP, wrote about how he overcame his own skepticism of a body-focused approach to mood after reading Why Zebras Don’t Get Ulcers in a May, 2015 post on the blog Popehat. “Before I had been very skeptical of any body-focus as sort of crystal-thumping woo. But not surprisingly, there’s actual science to the concept that our bodies impact our minds.” For lawyers, a group that suffers from mental health and addiction issues at rates that far outstrip the general public, the importance of understanding the mind-body connection is even greater. Professionals have the benefit of affording the means to experiment with and improve their health.
As the science about health and longevity becomes more widely publicized and accepted, the mass affluent will continue to demand an experience from fitness and supplement companies that is congruent with the rest of their lives. Hormone replacement therapy, which Jay Campbell’s book notes is a deeply private and anxiety-inducing issue for men, seems like a natural complement to the rise of “concierge medicine,” essentially a re-branding of the old house call. As seen in the growth of these industries, demand has increased with awareness, and has led to innovations in delivery.
There are still many things beyond the scope of this article that support its proposition that health is now a luxury product. The increased demand for organic food has led to the growth of specialty grocers like Whole Foods, and has made traditional chains increase their organic produce offerings. There are also the subcultures of juicing and blending, which reduce fruits and vegetables to liquid form, and the unlikely schism between both groups’ adherents. Whether in pursuit of youth or the strength needed to be a more formidable adversary—fulfilling the age-old edict that the weak should fear the strong—the demand for high-end products and services in the fitness and health industry will continue its stratification as a luxury market.
People desire cosmetic procedures for a variety of reasons. For some, it is because they are looking to enhance their appearance before re-entering the dating scene; some want to look on the outside as they feel on the inside; and some just want to look better in their clothing. It is a sign that after years of spending time on work and family, they want to spend a little time and invest in themselves.
But a result of recent financially trying times, there has been a trend in baby-boomers wanting to stay competitive in the job market. In years gone by, many would’ve waited to have plastic surgery to enhance their appearance once they were retired; but now, with first impressions and the competitive nature of the job market being what they are, people are seeking cosmetic enhancements much earlier as a way to prolong their working years.
According the American Society of Plastic Surgeons, people over 55 accounted for over 25 percent of all cosmetic procedures performed in the United States in 2013. But there can be hurdles for the mature patient undergoing a cosmetic surgery procedure. Here are a few things to keep in mind.
The Reality Of Recovery
Some patients are concerned about bouncing back and returning to work in a reasonable amount of time, and that is a valid concern: Healing and recovery can in fact take longer in mature patients. But in most cases, if they follow instructions and discuss with their surgeon what will be expected of them, returning to employment in an appropriate amount of time can be planned for.
It’s The Money, Honey
A hurdle for some people on a fixed income is that their desired elective procedure will eat into their nest egg. This is important when deciding the best plan of action to achieve one’s desired cosmetic result. Although non-invasive options can appear less expensive, in the long run (and if enough of them are needed), their cost can add up to almost the cost of a surgical procedure.
It must be understood that both surgical and non-surgical options are good, and that fillers and non-invasive procedures do not replace surgery (and, vice versa). For that reason, you should discuss your desires with your plastic surgeon as well as your short- and long-term goals. Some patients find that a surgical procedure is the most economical in the long run, with only small amounts of fillers to maintain the appearance as they age being the best option. But a frank discussion with the surgeon is required for plans and decisions to be made in the best interest of your wallet, and your body.
More Than Just A Pretty Face
Although most people think that the mature patients seek only improvements on their faces, body work on people over 55 can constitute more than a third of all body work a plastic surgeon does in a year. At times, the type of body work that should be done on a mature person is slightly less aggressive in order to avoid the prolonged recovery, but that is something that can be customized to fit the individual and their ability to take time off of work. As with all procedures, having an open discussion with your surgeon should assuage concerns or fears, but also set you up for ultimate success.
Protect Your Health, Protect Yourself
With all patients—especially those in the baby-boomer age group—pre-existing medical issues should be addressed and cleared by a primary care physician before any procedure. Additionally, not only is it important to evaluate a patient’s physical health, but their emotional health is also a prime factor in proper treatment. In all patients, but especially in mature individuals, an open discussion about motivations and expectations about the procedure must be discussed. A procedure’s result (and how dramatic a change can be) is, at times, more underwhelming in an older individual. A surgeon can apprise a patient of limitations and perhaps normalize expectations…but the patient needs to be frank with the surgeon.
Plastic surgery, in short, is not for everyone…but if you are wondering if it is an option that is safe, affordable, and will give you, the patient, the improvements you seek, make a confidential consultation to explore your options. A board-certified plastic surgeon, such as myself, would look forward to answering your questions in an effort to give you the best experience possible.
Julio L Garcia, MD FACS, is the founder of the Regenerative Medicine Institute of Nevada, which is dedicated to helping patients with adipose-derived cell therapies for the treatment of acute and chronic medical issues. For more information about Dr. Garcia, please visit his websites at www.lvcosmeticsurgery.com and www.rminlasvegas.com, or contact his office by calling 1-888-FACES-89 or (702) 870-0058.
From the get-go, the restaurateurs who have brought Mixx Grill’s relaxed atmosphere to Summerlin’s Boca Park had one thing in mind: make it about the locals.
In most cities and towns, that’s probably a no-brainer. But in a place built on the backs of tourists who spend copious dollars that help keep the Las Vegas economy in the black, an eatery and drinkery for the folks who call this city home, 24/7/365, it’s important. And it’s the kind of (daresay) “winning thinking” that having an experienced duo on the front end can produce.
Mixx Grill was founded by JP Teresi, whose previously-opened-successful-restaurant-roster includes Sugar Factory, Chateau Beer Garden, Gordon Ramsay Steak, and countless others. Putting his degree to use, earned at France’s University de August Escoffier, service is key for Teresi…service that also delivers food representative of around the world quality and flavors.
Which makes this second, equally important half of any restaurant equation come together so nicely for Mixx: It has food that chef Bryan Ogden has brought to it. After years in the kitchen at Caesars’ Bradley Ogden (his father), he’s brought his culinary expertise to a place where he can truly hang his hat at, serving a menu that’s all his own.
From cold, hard-shaken drinks to its menu that runs lunch to late night and has something for vegetarians, carnivores and even just imbibers alone (check out the two daily happy hours—2:30-6:30 p.m. and 10:30-12:30 a.m., with prices starting at a very un-Vegaslike $4.77), there’s a lot to like. Especially this: “The Iron,” reminiscent of a teppanyaki grill, only bigger. Way bigger. And round. It allows diners to watch some culinary theatre before they get to ingest it, but not before they put their own touch on their meal by combining produce, proteins, sauces, and spices to create stir-fry-esque meals with unimaginable possibilities.
(Or, they can order off the pre-determined menu which is predetermined to fill bellies just as tastefully: butter-bean hummus; chorizo-stuffed Maine lobster; Portobello mushroom quinoa; Wagyu short rib. Yum.)
There’s a lot to love about Mixx Grill. What’s your favorite? Go for yourself and find out. And, go often. With a menu like Mixx’s (especially with that Iron), Teresi and Ogden have all but assured you’ll go back early and often.
Located At Boca park
750 S. Rampart Blvd., Las Vegas, NV 89145
There is only one place in Las Vegas where residents and visitors alike can come face-to-face with original and unique works by 20th century masters including Picasso, Chagall, Warhol, Erte, Miro, and more. Where 21st century masters-to-be are housed—masters like Bertho, Deyber, Fressinier, Hallam, Hofmann, Kondakova, Mas, Nichols, and many others. Where Salvador Dali’s largest oil painting in history is displayed on a wall that is 63-feet wide and 18-feet tall. Where a 27,000 square-foot showcase is filled with the most exceptional fine art from the past 100 years. Where over $100 million of museum-quality treasures are available not just to admire, but to acquire.
Only one place in all of Las Vegas. Martin Lawrence Galleries.
Martin Lawrence Galleries is recognized worldwide for its dedication to offering the finest in contemporary and decorative art, and its Las Vegas location—inside the Forum Shops at Caesars Palace—is the crown jewel of its 10 galleries that span the United States.
With new works arriving daily, the gallery is awash in inventory that offers visitors a once in a lifetime journey through the emotional, thought provoking and exciting world of fine art, curated by professional consultants who are friendly, knowledgeable and collectors themselves. Nowhere in Las Vegas can one find the type of treasures that are found at Martin Lawrence. Each piece of art is in the finest condition, with pedigree guaranteed genuine by the nation’s leading art retailer.
Martin Lawrence Galleries owns each piece in its collection and its art consultants intimately know all items. They take deep pride in helping customers purchase what they love. Offering one-on-one customer service to assist both the novice and the experienced collector in building their fine art collections, Martin Lawrence Galleries’ staff will happily visit your home or office. And as an added service, consultants will deliver framed artwork without obligation, allowing clients the opportunity to view the pieces in their new setting before buying. They will also hang purchased artwork within 50 miles of any of the gallery locations.
Martin Lawrence is a major contributor to many of the worlds’ finest museum exhibitions, including works on loan by Picasso, Magritte, Calder, Francis, and Warhol. In the last 15 years, Martin Lawrence Galleries has lent nearly 250 different artworks by 16 different artists to 32 different museums around the world. Museums such as the Whitney in New York City; MOCA in Los Angeles; the San Francisco Museum of Modern Art; the National Gallery in Washington D.C.; the Pompidou Centre in Paris; the Picasso Museum in Barcelona; the Hermitage in St. Petersburg; and the Royal Museum in Brussels, have all borrowed pieces directly from Martin Lawrence.
Special events at Martin Lawrence Galleries are always underway, including frequent exhibitions, artist shows and a yearly fine-art auction in September that includes refreshments, spirited bidding and a raffle. Recent gallery shows have included appearances by contemporary British Impressionist Kerry Hallam and contemporary Pop Cubist, René Lalonde. In July 2016, Martin Lawrence Galleries of Las Vegas hosted its annual VIP event. This year’s theme, “The Art of Love,” was held to benefit the charity RaiseAChild.org.
Martin Lawrence Galleries is located in the Forum Shops at Caesars. It is open Monday through Friday, 10 a.m. to 11 p.m., and weekends from 10 a.m. to 12 a.m. For more information about the gallery’s artwork, or to inquire about hosting an event inside the gallery, please call 702.991.5990. Other locations include La Jolla and San Francisco, Calif., Maui, Dallas, New York City (Soho), Chicago (Woodfield), New Orleans, and Boston. If you are unable to visit a gallery, images of artwork can be shared via email or through www.martinlawrence.com.
As you enter through the doors of the restaurant and lounge, D’ Coffee Shop, the atmosphere feels otherworldly and mystical, somewhat apart from reality. Antiques and baubles adorn any empty space on the walls and surfaces, clocks of all sizes hang at jaunty angles and rich colors of burgundy and mahogany envelop the dining room.
This isn’t just a restaurant, however: it’s a television set.
Lakisha Swift, the owner of D’ Coffee Shop and star and producer of D’ Coffee Shop Closes at 9pm, is forced to juggle her passion for acting with her need to make a living, as many in the budding Las Vegas film and television scene must. “It is a long strenuous, tedious ordeal,” she explains. “There’s a lot of hurry up and waiting.”
The Twilight Zone-esque series isn’t being pitched to major networks. Swift, like other producers in Nevada, is producing the series independently to sell to a streaming service. “We want to keep control and creativity over this,” says Swift, who’s been acting for the past 20 years. “Sometimes it’s good when you can make your own.”
Countless individuals and companies seek the financial benefit of Nevada’s low-cost living versus California, its more expensive border cousin, and for people in entertainment production, there’s a trade-off: Creatives in Las Vegas have no choice but to film low-budget, independent films and shows, as the market—and money—for making big movies and small-screen series is primarily located 270 miles away in Los Angeles…the center of the industry.
“Most who are independent filmmakers have other jobs,” explains Brenda Daily, CEO of Mamabird Productions, an independent film company. “We’re not getting the work out here we’d like to have, and that’s why we’re not growing the film industry as we could.”
In 2010, unlike many states that aspire to be film-friendly, Nevada wasn’t offering tax incentives to those who wanted to film in the state. As a result, the Nevada Film Incentive Task Force (now, the Nevada Film PAC) lobbied state legislators to pass laws providing tax credits to attract production to the state.
Senator Aaron D. Ford, the co-sponsor of the eventual bill, promised his constituents that he would diversify Nevada’s economy and bring in new industry. He hopes to do so with the film incentive.
“Our state has an ideal location for the film business, rich with iconic landmarks like the Las Vegas Strip and Lake Tahoe, and it possess many workers who are trained in the technical and creative aspects of the film business,” he says in a video on his Nevada state website.
In 2013, the film incentive bill was passed and the state agreed to give $20 million per year for 4 years in tax credits. But things got complicated in 2014, when Tesla explored Nevada as a possible location for its Gigafactory and looked to the state legislature for funding. As a result, all but $10 million of the funding promised for tax credits, as well as money from other programs, went to Tesla. In 2015, the bill was brought to the floor in an attempt to bring the program back to its former funding but it has not been voted on.
Joshua A. Cohen, co-chair of the Nevada Film PAC and founder of Cohencidence Productions, LLC, as well as a few other film-related business ventures, is hoping to change the landscape of filming in Las Vegas and the state of Nevada.
“Statewide production volume has tanked over the last 15 years. The number of productions is increasing, but each is spending less locally,” says Cohen. “The big, multi-million dollar productions are going to other states with funded incentive programs. There is enough crew base and infrastructure here to handle three major productions at once, like we did in 2014.”
The Nevada Film Office (NFO) is a government agency that promotes the state of Nevada as a film and production area; assists in hiring local crews; helps to find facilities, lodging and rental equipment, and much more. It is required by the state that all productions are registered with the NFO and that a permit must be granted by local jurisdictions.
Film permits hit an all-time high in 2015 with 436 granted for filming in the public write away, up from 400 in 2014, 343 in 2013 and 226 in 2012. (This number does not include filming on private property, however, so the number of films and productions is likely significantly higher than what is reported.)
“I think that our government employees do a really good job helping businesses get things done, but they require that the law is observed so they can take care of our community,” says Michael Stein, a partner at the law firm Snell & Wilmer.
Stein stressed the importance of getting a permit while working on public land, especially national parks. “I think it’s very important that before production they find a Nevada attorney to help them,” he says. Many filmmakers run into trouble without consulting a lawyer, or from using one that is not an expert in Nevada law.
Looking toward the future, Jason Miller from Silver State Productions hopes to keep recent graduates from the University of Nevada Las Vegas local, instead of watching them move to the increasingly saturated Los Angeles film community. “Students from UNLV are so great, but are being forced to move to L.A., so we’re losing these really quality people—young people that any state should want.” By staying, Miller argues that they will buy homes and put their money into the local economy, helping more than just the film industry.
Although the film and television industry in Las Vegas and Nevada is only now picking up, there are already capable, passionate individuals who are determined to help their state grow to potentially bring thousands of new jobs to the state…if it’s not forced to move elsewhere.
“I’m still optimistic about building a film and television industry here,” adds Miller. “It’s a natural fit with Las Vegas’s branding as the Entertainment Capital of the World. We have plans to build a studio, and we anticipate getting our incentive funding back next session in 2017.”
Elena Castriota is a Boston-based freelance writer and social media marketer. She can be reached at email@example.com.