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From time to time I give advice to plaintiff  lawyer friends regarding their cases. (sometimes when I’m  not asked) I thought I share some general responses I’ve given recently as way to stimulate your own ideas about these issues. Here they are.

A lawyer who had a medical malpractice case against a midwife for shoulder injuries at birth asked a group  of plaintiff  lawyers what we  thought of his chances and the damages after he outlined the facts to us. Here were my thoughts.

I don’t have the answers but I do have some gut reactions for what they are worth:

I think the best way to get answers to your questions is a “silent” focus study:   Short video without sound along with a time line plus key clinical records.  This would be presented without argument or supporting facts. Just the basic fact pattern without details and without any lawyer argument. It should be given to a group in the county where the trial will take place after which you give them just your  questions in writing and before discussion. That would be a whole lot more reliable than asking a biased group of plaintiff lawyers for their views.

I also think you should consider progression drawings where you show child with this injury from birth now and into old age. The  cute little baby has a different view  than  the adult and elderly person he or  she becomes with this injury.

I think a midwife  case like this one has two opposite poles – negative and positive. On the one hand,  a good number of people have the idea it is risky to not have a physician deliver a child and a midwife is seen as less than competent. On the other hand, those same people will tend to blame parents who they see put themselves at risk by going to a midwife instead of an OB at a hospital. The more you paint the midwife incompetent the more you generate defensive attribution “I would never have done that…”  It requires excusing parent’s selection and trust in midwife while proving case vs midwife. You need  to do both.

I think these cases require an open discussion approach in voir dire about key issues such as using midwifes, the usual malpractice issues and about this kind of injury rather than a closed end demographic inquiry.

I also believe the best chance of winning these kinds of cases is proof of a gross betrayal of trust. Proof the parents were deceived into putting their trust in an incompetent person who was motivated by money, pride or other wrong motives for her actions is your goal. That’s because medical mistakes will be forgiven, even if you prove they were mistakes, by jurors in this county and most anywhere else. Betrayal of trust for wrong motives will be punished. The theme should be reasons that were a lot more serious than medical mistake or negligence in order to win.

As to the damages, the obvious problem is this is a suit only against the individual midwife and there will be a perception of a lack of deep pockets so that unless the jury wants to punish for serious breaches of trust they aren’t motivated to pay more than the bills. Only juror anger will drive a large verdict against a single midwife defendant.\

Later the lawyer  in the case was offered a settlement by the insurance company. Here’s my advice in that regard.

Well, that’s more than a nuisance offer so they do have concerns. One wild card is the negotiation process. Our best settlements are made the closer we get to trial, but always balancing whether there is a risk of withdrawal of the offer. My own reaction  at this stage of the case was to take a hard stand sometimes even into trial because my gut was they were testing me and clients.

Beware of self-righteous and inexperienced court appointed guardians who sometimes get involved in this process.  They often try to interfere in the negotiation process  when they lack knowledge and experience to do so.

As to the offer, we both know the evaluation process. The questions are: What are odds of winning both liability and causation? What is likely verdict in that county if case goes well? Comparing the two results in a settlement range. On a practical level one must also consider: What are the cost advanced and liens due others considered with fees resulting in what net amount to client? What referral or other fees owed which determine net to lawyer?

Keep in mind in a case like this with a minor  as plaintiff reduction of usual  40% malpractice  fee is  likely, either voluntarily or by court involvement when you ask for approval of minor’s case.

As to liability, I don’t have a good feel on this but have the idea the defense is weak on its causation defense. As I’ve indicated before, the liability and damages will be driven by the degree to which the jury is upset by the conduct of defendant. Really angry jurors increases both liability and damages by a significant amount. Having them less upset but upset with the midwife’s  conduct still helps liability and causation but usually means a compromise verdict amount. If they see this at most as only a medical mistake you will probably lose the case or get a much compromised verdict.

My view was to always consider the settlement offer from the viewpoint of the client. Can the client afford to gamble? Will the net amount make a difference to them or is the amount small enough the gamble isn’t very large? Is the amount offered small enough that it dictates going to trial even if risk involved? Or is the case risky enough even a less than expected settlement is better for the client. With minors this decision is always more difficult. Whatever you decide be sure to cover yourself with fully informed clients confirmed in writing.

In another case, the lawyer had an employment suit in federal court where the client had been induced to retire early, but without disclosing that remaining longer would result in the right to a much larger termination package. My thoughts  were these:

You have two polar points in your case. One good and the other negative.  The good point is the financial motive of the employer to cheat your client and the other is the fact your client was “dumb enough” to be taken in by it.

You need to inoculate jury for idea client got what they deserved because they were negligent in not learning what they would have received under the rules before agreeing to retire early for the bonus they offered. Or, as it is technically called “defensive attribution” which is the idea by the juror:  “That would never have happened to me. I would have …….” Obviously, this always means starting the story with the defendant and the defendant’s actions, not the your client’s story.  Only after a thorough story about what a thief defendant is do you say anything about client’s actions and then you explain how they were taken in.

I would adopt a theme for this case and follow it from voir dire to argument based upon dishonesty of the employer.  If you had voir dire the questions I would ask open ended questions about their feelings regarding truth and honesty  like what they would want to teach children about honesty, their  feelings about people who steal etc.

And in opening I would  repeat the theme with something like:  “this is case is all about whether an employer can plot a way to cheat an employee out of money rightfully theirs and get away with it.”  Every witness should involve questions around the theme. I’d also think up some “rules” questions you don’t care what the answer might me. For  example:   “In your business experience  is it ever OK for an employer to deliberately figure out to cheat an employee  out  of what  is rightfully due them in compensation?”

Instead of spending time covering details like contract provisions, dates, and  the like,  I  would never leave that main theme. I would make the theme the beginning, middle and end of every witness doing only a minimum on legal proof to avoid dismissal.  I believe you adopt that point as virtually the sole point in your case and throughout the case. I don’t think you can be timid about this. It  doesn’t work to sort of mention it and then be intimidated by the strong accusation involved. I think it has to be a courageous “in your face theme of cheating an employee” if  it  is going to create the outrage you want from the jury.

The good news is that when the motive for wrongful actions in a trial is obtaining money dishonestly that causes one of the strongest negative reactions which is actually Biblical: “Thou shalt not steal.”  It is a commandment of God and we learned it in childhood. It is a universal moral rule. In addition, we have a  huge emotional trigger here because they cheated this person out of money that was rightfully his.

I think you have a chance for outrage here with major betrayal of trust and real anger in response calling for severe punishment. Capitalize on it is my suggestion.


Here are a collection of thoughts and quotes which you may find inspirational and worth considering in your life and law practice.

  • Always say less than necessary.
  • Machiavelli has said: “It is better to be feared than loved.”
  • When asking for help, appeal to people’s self-interest; never their mercy or gratitude
  • Take action with boldness: everyone admires the bold; no one honors the timid. If you are unsure of what course of action, do not take action at all.
  • The Italian word “Spezzatura” refers to accomplishments seem that effortless. Strive for actions that seem natural and executed with ease. Performers who put too much effort in performing break the illusion
  • A Self fulfilling prophecy has been called “the strategy of the crown” Seeing in our mind, our goals accomplished involves a chain of cause and effect. If we believe we are destined for great things our belief will radiate just as a crown creates an aura around the King. Throughout history people have managed to work the strategy of the crown by believing so firmly on their goals that it becomes a self-fulfilling prophecy.
  • Master the art of timing: Be a detective of the right moment. Learn to stand back when the time is not right. Think of the Hawk as it patiently and silently circles in the sky high above until the right moment arrives. “There is a tide in the affairs of men, which, taken at the flood, leads on to fortune; omitted, all the voyage of their life is in the shallows and in the miseries.” William Shakespeare
  • Distain the things you cannot change: ignoring them is the best revenge. By acknowledging a petty problem you give it existence and credibility. In the same way, the more attention you pay an enemy, the stronger you make him or her. The less interest you reveal, the more superior you seem. By showing distain or ignoring people you cancel them out.
  • In victory learn when to stop. The moment of victory is often the moment of greatest peril when arrogance and overconfidence can push you past the goal and by going too far and lose.
  • A Person must be big enough to admit mistakes, smart enough to learn from them and strong enough to correct them.
  • Effective advocacy is a matter of A,B,C: Be accurate, brief and clear – William Barton
  • Establish your credibility by being prepared, efficient and truthful. These are the attributes jurors admire the most – Lisa Blue
  • Trials are battles of impression, not logic. They are a tug of war for the minds of jurors – Paul Luvera
  • It’s not what the defendants have taken from the injured plaintiff, but rather what they left him or her with – Moe Levine
  • If you aren’t afraid, you don’t care. And if you don’t care, how can you ask a jury to care? Gerry Spence & Paul Luvera
  • We are no bigger than what it takes to make us angry
  • We are responsible for our feelings
  • Let into your circle only what you believe or accept about yourself
  • God grant me the serenity to accept the things I cannot change; the courage to change the things I can and the wisdom to know the difference


This post is for lawyers just starting a plaintiff’s practice. I want to outline the fundamentals of winning so they don’t get lost in all the complex discussions about psychology of trial. So, let’s look at some of the basics  observed by trial lawyers who win cases. Here are a collection of 12 rules which will improve your chances of winning a trial.

  1.  SIMPLIFY YOUR CASE The  most common mistake lawyers make is to over try and overcomplicate their case. How do you simplify a case? Number one: be able to state what your case is about in a single sentence. Think of the salesman’s “elevator pitch.” That is the ability of the salesman to pitch the product while in the elevator to the customer before it reaches the next floor. If you can’t describe your case in a simple manner you do not understand your case well enough to try it. Number two: make sure the evidence you decide to produce at trial supports the single central idea of your case. Number three: explain the defendant’s conduct through a unifying motive and intent. Number four: present your evidence in a chronological order using a timeline for jury assistance. Number five: simplification comes from preparation and organization. You will not be able to simplify the case unless you have it organized and prepared.
  2. APPEAL TO SELF INTEREST.   Keep in mind what motivates the jury. It is not concern for your client. It is the question in the jurors mind either consciously or self-consciously: “how does this case affect me, my family or my community?” Self-interest is what is the most important thing in the jurors mind. The number one way to make people listen is to show them what’s in it for them. That’s why the concept of appealing to the primitive brain is valid because the chief concern is survival and reproduction of the species. That’s why rules appeal to jurors because it involves self-interest when rules are not followed.
  3.  JURY SELECTION IS A CONVERSATION NOT AN INTERROGATION. Your goal in jury selection is to encourage discussion through questions about feelings and opinions. Its goal is not to disqualify jurors but to create a small group  motivated to listen to you because they trust you. Keep in mind personal zones of privacy when you stand in front of the jury. Stay back far enough to honor this factor.
  4. ANSWER THE JURORS UNEXPRESSED QUESTIONS: The jurors all have questions and you should answer them. These questions include what is this case about? Why has this lawsuit been brought and what does the plaintiff want? What does the defendant say? You should be the lawyer that answers the questions for them because they also look at who is telling them. They look for a leader, a teacher, a guide and someone they can trust. That should be you.
  5. OPENING STATEMENT SHOULD PAINT THE PICTURE OF YOUR CASE SIMPLY.  Opening statement is a time when you tell the jury why the lawsuit has been brought, what you are asking for and why and supports your case with the major evidence you will present. You may or may not decide to give them a figure you will ask for depending upon the circumstances of your case but you must  discuss damages and at least promise that you will show them how to appraise the damages at the end of the case. You need to discuss defenses and the evidence you will present in that regard. Your case should have a single theme and should be framed in the best possible way. The combination of jury selection and opening statement is the heart and soul of the case because people make up their minds very early in a trial and once having done so are slow to change their viewpoint.
  6. ALWAYS TELL A STORY  we know that everyone is mentally geared to listen to a story. Children say “tell me a story.” Someone on the phone says “have I got a story to tell you.” And they have our attention. Your case should be a story. One that is told from the beginning of the case through the entire case including cross-examination. Be a good storyteller and learn how to tell a story right.
  7.  REMEMBER THE IMPORTANCE OF NONVERBAL COMMUNICATION:  We know that nonverbal communication is probably more important than verbal communication. How we stand how we talk how we act all communicate more than the words we use. Where do we keep our hands? Are our gestures congruent with what we are saying? Is our stance open with our hands open to the jury? Nothing is more critical than eye contact. As long as the juror witness or judges talking we need to maintain eye contact. The greatest fault of most lawyers is talking too fast and too much. Remember timing and pauses. They are important.
  8. MAKE DIRECT EXAMINATION PERSONAL:  we need to learn to make our direct examination personal and not a stilted chronology. After we have the required identification information we  should explain why this witness has been called by a simple question to the witness such as: “you are the doctor who treated Joe Brown and are here to tell us about your medical conclusions and treatment correct?”  With non-expert witnesses one should consider a personal approach like “how do you feel right now?” Or “what is it you would like this jury to know. Try to make the witness human with some personal background and by your demeanor. Do not make it sound and look like a police interrogation of an accused. Always make a story.
  9. IN CROSS-EXAMINATION STICK WITH THE BIG POINTS.  Jurors are not interested in nitpicking attacks on witnesses. If you have a major impeachment point use it but don’t bother with the minor details which will make you look like you are wasting time and picking on a witness. Remember, cross examination doesn’t have to be cross. Your demeanor should be professional and generally courteous. Finger shaking is only for the movies.
  10. FINAL ARGUMENT NEED NOT BE LENGTHY TO BE PERSUASIVE  the key to winning cases is to make the case as simple and as persuasive as possible. Even lengthy trials do not necessarily require lengthy summation. If one has correctly told the story and consistently maintained the theme throughout the case then summation is the retelling of that story supported by key evidence. Damages should be explained in terms of past and future time periods. Economic damages should be carefully distinguished from non-economic damages. Jurors should understand that economic damages pays bills due others and it is only non-economic damages that represent justice for harm done. Therefore the damages appraised for non-economic harm represent pure justice. It is a sum of money which the jurors have found equals the harm done. That assessment is made without regard to the needs of the plaintiff, the wealth or poverty of the plaintiff or any other factor than the question: “is this sum of money equal to the total harm done to this person?”

These  are the basic rules for winning cases. They are not complicated, but they are valid. Good luck in applying them. They are important.