Tom Wolfe, in his book The Right Stuff, described how military pilots reacted when a fellow pilot was killed during test flights. He wrote:

“The other pilots shook their heads and said it was a damned shame, but he should have known better than to wait so long before lowering the flaps.” When another friend was killed after climbing and then diving straight into the bay, they said  “How could anybody fail to check his hose connections? And how could anybody be in such poor condition as to pass out that quickly from hypoxia?” When their friend, Bud Jennings, crashed his plane and burned to death they all agreed that “He was a good guy and a good pilot, but his epitaph was: ‘how could he have been so stupid?”

Why would good friends have those attitudes when a fellow test pilot and friend was tragically killed in a crash? Where is their sympathy? The answer was explained by Quentin Brogden who wrote an excellent article in Trial Magazine entitled “Why do jurors blame the victim?” He cites the Wolfe’s book, and says that test pilots reacted so unsympathetically towards their friends deaths because they were using a coping mechanism that psychologists label “defensive attribution.” That is, blaming the victim in order to distance themselves psychologically from their chances of a similar fate. As he notes, many of us do the same thing.  For example, when we read about the victim of crime and our reaction is “what was that guy doing out in that part of town so late at night?” It reduces our fear that we could suffer the same fate and distances ourselves from it happening to us.

In  addition to that, research shows that the more severe the accident or the harm suffered by the plaintiff, the greater the jurors need to blame the injured person. They are even more inclined to blame the injured person  in order to preserve the belief that they would have avoided a similar fate. As a result, in cases of serious injury, mock jury studies showed the jurors discounted damages twice. First, by blaming the injured person  and then increasing the amount of the discount due to the degree of seriousness of the injury. Using hindsight bias. Jurors did this even when it was made clear neither was a legally relevant issue.

To complicate this even more, there is body of research which indicates the jurors place more blame on the injured plaintiff when they have similarities to him or her or identify with them. Psychologists call this the identification effect. These identifications have the tendency for the juror to reassure themselves they would not have done the same thing.

 In addition research has indicated that jurors who have had injuries like that suffered by the plaintiff, but did not decide to try to collect compensation for it or file a lawsuit, are more likely to blame the plaintiff than other jurors.

Given these factors, it’s important which party we start telling our story about. The concept of availability bias refers to our mental process of starting our impressions with the first available information we get. It is clear and well-established that we should address the defendant’s side first. Jurors begin forming impressions with the first available information. In presenting our case story we should begin with the defendant because jurors start their impression by focusing on the first information they are given. They apply defensive attribution to the first party’s conduct they learn about. In addition,  since anger at a defendant is much more powerful a motivator than sympathy for the plaintiff, we want the jurors to start by focusing on what the defendant did wrong. As people struggle to understand information they focus on the first information they are given and then began to fill in the blanks by creating a story in their minds that they believe. When we present the defendant’s conduct first the jurors focus upon the defendants blameworthiness. Only after that, and after blaming the defendant, do they began to examine the plaintiff’s behavior. By identifying the defendant as the villain it encourages the jurors to be angry at the defendant and less focused on the plaintiff’s conduct.

These factors should be considered along with jury motivators in how we present our cases. Jury research shows that the average juror are motivated in five general ways:

  1. They want a complete story:  A beginning a middle and an end with a logical reason for actions. They do this by creating in their minds a story that is whole and complete and leaves no loose ends.
  2. They use all of their available information whether it has been admitted in  evidence or not. Most of this occurs subconsciously. For example past life experiences they have had are significant to them. Their value systems and their existing opinions or biases are all involved whether admitted in evidence or not.
  3. A trial is a battle of impression and not logic. People do not reach decisions by examining the evidence presented in a logical way, weighing it and then arriving at an objective opinion. They make their opinions almost entirely at a subconscious level based upon their impressions, values and the story they have created about the case. This process begins immediately when they are given information to consider.
  4. Jurors want to do the right thing. They want to feel good about their verdicts.
  5. Jurors want to appear reasonable and to appear to have been fair and following procedural rules and arriving at their decision.

The psychological factors described previously operate subconsciously and without the jurors even realizing it. It’s the advocates job to understand these psychological factors and present their case in a way that is consistent with them.

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Medical malpractice cases are some of the more difficult liability cases we are asked to handle for injured clients. In these cases, words and phrases can often be of particular importance. For example, statements that combine common sense with ideas of negligence are powerful: “Caution and double checking is a part of good medical care.”

Another idea is when introducing a statement consider using rhetorical questions rather than statements. For example:

  • Why are we here? What did the doctor do wrong?
  • What would another doctor have done?
  • Why did the pediatrician choose to play Russian roulette with this child’s life?
  • What happens when medical people ignore danger signs?
  • Why didn’t they pay attention to the danger signals?

If possible, try to summarize the case in a short paragraph. For example:

“the doctor obviously made the wrong choice, and took the greatest risk. What’s the right choice? The lowest risk. You don’t have to be a doctor to figure that out. All you need is common sense.”

Consider using word associations as for example:

  • The baby needed intensive care and got intensive neglect.
  • Doctors should help us, not hurt us.
  • A doctor should test, rather than guess

Consider the questions in jury selection in medical malpractice cases with the goal of obtaining attitude answers.  Here are some open ended questions lawyers have used successfully:

  • Is what you do as a juror important for a waste of time?
  • Our old people really worth anything?
  • How many people feel as though there has been a lack of trust in our world?
  • Has anybody ever been in a position to bring a lawsuit but chose not to?
  • What does the phrase” running a medical stop sign” mean to you?
  • What is your definition of quality medical care?
  • How many of you check the Internet about your medical condition before you seek medical care?
  • What is a doctor’s primary responsibility in caring for patients?

These are a few examples of giving real thought to the words you use in these cases and how you express yourself, because words do count.

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A common mistake lawyers make in our communications with people is to assume that people understand what we have said or already know something that was left unsaid. Too often in our jury trials we use abbreviations or acronyms assuming everybody understands their meaning when they don’t. The more experience we have and the more we know about a subject, the greater our tendency to forget to clearly, completely and simply explain it to others.

When we are meeting with new clients it is important that we give a full and complete explanation of what to expect. Not only is it an objective for “informed consent” on our part, it is an obligation we have to prepare our clients for what’s ahead. Clients who are contemplating hiring us are also entitled to know what to expect. After numerous conferences with clients and potential clients it is easy for us to forget to give the full explanation each new person is entitled to receive from us. The best way to deal with this is with a checklist for each type of case we typically handle. By referring to it we can be assured we have covered the major points the client should know about.

The following is a general outline or checklist regarding a medical malpractice case. You should modify and revise it for your jurisdiction and law practice.

Written contingent fee agreement

Washington state legally requires that all contingent fee arrangements with the client be by written agreement.  Even before this became a legal requirement, our firm’s policy was to have a signed written fee agreement. The agreement should spell out all of the relevant particulars of the arrangement. It should be reviewed with the client. The fee arrangement with the client should be outlined in the agreement and clear language. An explanation as to why the fee in a medical malpractice case is generally more significant than that in of other cases is helpful to the client. The length of preparation and trial, as well as the fact the lawyer is advancing the costs are important factors in this regard.

Expenses & costs

In reviewing the written fee agreement it is important to explain the provision relating to out-of-pocket costs. The client should understand that the out-of-pocket costs for fees to medical experts & court reporters, the expense of  obtaining copies of medical records and payments made for necessary documents or materials is always very substantial in medical malpractice cases.In our state, we would probably advise that once a case has been accepted the average out-of-pocket costs incurred to the time settlement discussion averages between $100,000 and $250,000. The average out-of-pocket costs incurred from the time the case begins to the completion of a jury trial averages between $300,000 and $500,000 depending upon how long the case takes to try and can be more in some cases.

We tell the client that we realize that almost all of  our clients are unable to pay for these out-of-pocket costs. Our practice is to pay these expenses for our clients and deduct when settlement is made or the money collected. The client should be told they will be given full particulars in this regard.

Our policy is to send copies of the bills as well as other materials generated in the case to our clients. If they decide they would rather not receive this kind of information they should advise us.

Preparation Required

The client should be told that the preparation of malpractice cases involves collecting all of the relevant medical records from both doctors and hospitals as well as any other treating health care provider. The records must be organized and reviewed by qualified medically trained people who index and summarize relevant records for the lawyer. Consultation with qualified medical experts after their review of relevant records is essential to determine liability and medical injury evaluation. This evaluation by the lawyer  based on this information is the factor which determines whether the case has sufficient merit to proceed. The lawyer will analyze the potential settlement value of the case and determines the plan handling of the case generally. The evaluation process is a continuing and ongoing one as more information is obtained. At all stages it will involve consultation with the client.

Obtaining relevant information

The discovery of relevant information about the case involves the taking of sworn testimony (deposition) of the involved healthcare providers as well as the patient and family members. It also involves taking the sworn testimony of the medical experts for both the patient and the defendants in the case. This is both very time-consuming and expensive because the medical experts are entitled to a fee for their time and the court reporter charges for recording the testimony and providing a typed copy to the attorneys. We will prepare you for your deposition and be with you when it takes place.

Review important points

The client discussion should include a review of some of the following factors that apply to a medical malpractice case:

  • There is a time limit for filing a malpractice case called the  “statute of limitations”
  • The law requires sworn testimony from a qualified medical expert that malpractice has occurred or the case will be dismissed before ever going to trial. The defense has an almost unlimited source of experts to testify that there was no malpractice. The plaintiff has difficulty finding qualified medical experts, especially local ones. Finding qualified medical experts is one of the more difficult challenges the lawyer will perform for the client.
  • It is important the client knows that statistically 80 to 90% of all malpractice cases that are tried to a jury are lost in this state. There are no guaranteed malpractice case results.
  • It is not uncommon to have doctors and nurses to cooperate in providing a defense to the defendants. Sometimes proving the truth can be difficult.
  • Malpractice cases require proof of two essential factors: (1) there was a failure to meet the standard medical care required in this case i.e. “negligence” and (2) this failure to comply to the standard medical practice was a cause of the harm done to the patient. Therefore, not only does the patient have to prove there was negligence, the patient has to also prove that the negligence was in fact the cause of the harm complained of. It is not uncommon, in medical malpractice cases, for the defendant to maintain that even if there was a breach of medical care it wasn’t the reason for the outcome and therefore they are not responsible legally.
  • Patience is required by the client and medical malpractice lawsuits. The average time, from our acceptance of the case, to the time the case has been settled or tried is about 1 ½ to 2 years. This is due to the court system involving the scheduling of cases as well as the time required to collect all of the information necessary.
  • The majority of malpractice cases are settled out of court, but there is no guarantee that a case will be settled. Every case should be approached as if it will go to trial.
  • On the other hand, in virtually every case, there will be a settlement discussion with the defense and their insurance company. This normally is in the form of a joint meeting called “mediation.” This process involves a trained and knowledgeable person known as the mediator who conducts the discussion. Usually, this is done by having the different sides of the case in separate rooms and the mediator going back and forth. When a mediation is scheduled we will spend sufficient time with you to completely review the process and prepare you for it.


This obviously is an incomplete outline of what the lawyer might discuss with a client or a potential client at the initial conference. However, it is important to review the key facts with a new client or potential client in a medical malpractice case. Unhappy clients are often the result of our failure to prepare them and fully inform them as to what to expect in these cases. Having an existing checklist for each case you commonly handle the office is an effective way to make sure there has been full and complete communication.

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