That’s human nature. It’s Biblical. We forgive mistakes but punish sin. It’s built into our nature. I’ve written about this subject  several times, but, the Seattle Times had an article about  a $500,000 verdict which is $100,00 more than the plaintiff asked the jury to award. The trial involved a claim of racial discrimination by the Clark County sheriff’s department. The jurors were quoted as saying:

“It was obviously a racist and hostile work environment. We wanted to make a point. There’s very much a pattern of racism. The fear of losing  your job if you report it needs to stop. An attitude adjustment starting with top management is also needed”

I see this as a classic illustration of what is needed to prevail in malpractice cases and most cases as well. First, these jurors arrived at a primary motivating issue for them – eliminate racism. It’s the “I just can’t get  over the fact  that…” issue needed for great results. Second, the jurors found something  more than a mistake was involved. It was a betrayal of the duty of moral and ethical conduct expected from law enforcement. This was the kind of wrong conduct that required punishment, a Biblical punishment rather than forgiveness for mistakes we all can make. Third, the verdict was intended to ensure the practice would not only  stop but that others would learn from the lesson – hence the extra $100,ooo to make a point.

My view is that certainly  there are jurors  who are driven by a strong sense  of justice, but if we want to  appeal to the broadest base of jurors and in particular conservative jurors I think it’s clear we need to abandon our customary approach to malpractice cases of focusing  on as much proof as we can show of a failure to comply with the standard of care and instead regard negligence primarily as a requirement to get to the jury. Our focus should be on the “why” and not the “What” that is: why did this happen and not what happened. The “why” is where the anger and resonating issues are found. It is far more important to show the doctor was  in too big  a hurry  because he or she was seeing too many patients in  order to make more money or because they were leaving  for a golf game or making money by volume or some other betrayal of trust the patient put in them.

My experience is that a lot of lawyers “know the lyrics but can’t sing the song.” That is they intellectually acknowledge this concept, fully agree with it but can’t implemented at trial because it requires a great deal of mental discipline and even courage. They are reluctant and intimidated to  directly attack the doctor or hospital with the suggestion that there has been a betrayal of trust. It’s much more comfortable to argue medicine. So, they give lip service to this concept once or twice in jury selection and perhaps opening statement but then promptly forget it for the rest of the trial until perhaps argument when it’s too late to be really effective.

In addition, the application of this idea has to begin in discovery. The problem is that most lawyers spend their time in discovery focused upon the medicine in a malpractice case or the negligence facts in other cases. They give far too little effort to the collateral facts that would allow a showing of bias and impeachment. These facts are critical to cross examination often more important than the medical issue involved. Furthermore, they too often accept at face value explanations for why it occurred if they even make inquiry about the reasons for the negligence. Instead one cannot settle for the facts surrounding the mistake but  must relentlessly pursue the wrong actions or motives that prompted it. Discovery, both at deposition and by other discovery must focus on the real reasons  behind the negligence.

The next step is  focus studies to identify what issues might resonate with a jury about wrong motives and bad actions. What would a jury likely find to be a “betrayal” that requires punishment? The case must  then be framed around that issue.

David Clark, a trial consultant, and I have had a lot of exchanges about this subject. I think he correctly notes that it is in the defense’s best interest to talk about the medicine. Complication and confusion is their best weapon of defense. A story of betrayal is a story of a serious wrongdoing that is important to the tribe. Stories of mistake are ones of forgiveness. Mistakes are forgiven. Betrayal was punished. Therefore framing is critical in this regard.

A story of mistake is usually identified by the attorney starting the story with his client as the central figure. That’s because stories of mistake are usually framed that way. What’s your case about? “My client is brain-damaged from malpractice.” Stories of betrayal start with the defendant. “This case is about a doctor who ignored obvious signs of a clot in the leg until it had to be amputated because  he was too busy to respond.”

Our culture is one of tribal membership. We are drawn to forming groups and uniting. Fan clubs, organizations and family groups are all examples as well as community pride. Betrayal that drives a verdict involves  the idea that there has been a betrayal of the tribe and not a single individual case. It is a story of  of trusting someone and being betrayed, but with the threat to other members of the tribe of the same thing unless punished and stopped. It is the idea that this defendant is an outsider of his or her own tribe.  Whereas the tribe of physicians, including the jurors personal physicians, are all members of a group doing good for others, this person is outside the circle and the exception.

A successful application of these ideas involves a complete story that has the required beginning, middle and end. It is a well told story that has a consistent theme and is told and retold until the end of the trial. It cannot be a mix of  a story of a medical mistake with some elements of betrayal. It must be framed as a story focused upon the wrong conduct and the wrong motives that caused it.

Do all cases have this key element? No. Some cases involve an inadvertent mistake. One has to evaluate whether that is sufficient to get a just result in a jury trial or not. One has to modify the remedy you ask for by the facts you can present. This is a process of screening and evaluation which is an important part of what we do as trial lawyers.

The primary truth is that we must always look for the reasons behind the actions and not just stop with the proof of negligence if we are going to obtain full justice for our clients.

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I am a great believer in checklists for everything we do in the law practice. If pilots with thousands of hours of flying religiously review checklists before flying and hospitals require checklists for medical care then how is representing a client any less important. With checklists you save time repeating previous work  and protect against omitting an important step. Here is a partial checklist for the use of the paralegal in the office. Note that it relies upon the the paralegal to do a lot of the preliminary steps, uses form letters and standard language where appropriate and covers the process involved. In my practice, demand letters all had the same format for information provided as well as standard language regarding office policies such as no confidentiality and other office policy.

You’ll note there is a restriction on scheduling mediations, limiting the time allowed to half a day. That’s because,  in my experience, you should know in the first hour or so whether there is any reasonable chance of settlement  and if so you can stay longer. Plus, 80% of all progress in mediation happens in the last 20% of remaining  time allowed for mediation.

Here’s my checklist which I’ve not revised for general application.



If we are sending a settlement demand letter to an insurance company or defense attorney follow these procedures.

__1.     See settlement form letter. Rough out as much of the demand as is possible for the attorney to complete. Note also attachments would should be included such as copies of bills, police reports etc. Make copies or list for attorney.

(1)        BE SURE TO INCLUDE STANDARD LANGUAGE regarding our settlement policy of no confidentiality in the letter and other office policy  about settlements. This must be in every demand letter.

__2.     Client OK No demand letter can be sent until written client authority is obtained and filed.

__3.     Information needed provide the attorney the following information to before getting client authority to settle.

(1)        Costs to date & information about any unbilled costs. This includes any referring or associate attorney out of pocket costs as well as our own.

(2)        The totals due for subrogation, liens, or amounts due as reimbursement

(3)        Current totals of economic loss information such as:

(a)        Wage loss

(b)        Bills both past and future

(c)        Property damage


On first page of the letter.

__4.     NOTICE Ask attorney if any of the following should get a copy of this demand:

(1)        Subrogation claimants

(2)        Labor & Industries

(3)        Welfare

(4)        Insurance company

(5)        ERISA

(6)        Other.

__5.     Client copy Always send a copy of settlement demand letter with attachments to the client. Put one copy without attachments in correspondence.

__6.     Settlement Folder Open settlement folder. Put one copy in a settlement folder. Make sure that copy has attachments.


Note: The following is the procedure for opening a settlement folder in preparation of a mediation, judicial settlement conference, or other settlement conference.  It is essential that it is a complete file.

__1.     Open a letter size file folder labeled “settlement” with client’s name. IT MUST CONTAIN THE FOLLOWING MATERIALS:

  1. Settlement documents from client file: 

__2a.    Print out all settlement history from computer and put in file 

__2b.   Letters Copy of all letters between our office and insurance adjustor or defense attorney relating to settlement. The latest should be on top and arranged chronologically. Put under case summary sheet on right side of file.

__2c.   Phone calls Include under “Phone” tab on left side of file any phone message or memo dealing with settlement.

__2d.   Fee agreement Include under “Fees” a copy of our fee agreement and any associate attorney fee division letter, agreement or memo.

__2e.   Notice letters Include with correspondence letters giving notice to others of the mediation.

  1. Forms: Insert in File 

__3a.   Settlement Summary Settlements not binding unless a) in writing or b) made of record. [See Howard v DiMaggio 70 WA App 734 (1933) See CR 2A & RCW 2.44.010.] Have our settlement form confirming settlement details under tab “Settlement Summary.”Have copies for mediator, defense lawyer and client.

__3b    Settlement History  Put the “Negotiation History” on top left side of file.

__3c    Have diary reminder to see that a completed copy is in the file if settlement is reached.

__3d   Include  IRS W-9 giving our tax ID number

  1. Cost advanced

__4a.   Include under tab “Costs” on left side of file a current up to date copy of our costs advanced. Do same with associate attorney’s costs.

  1. Form: Negotiation History

__5a.   Put on top left side the form regarding the negotiation history for the file.

  1. Client OK & Attorney Evaluation

__6a.   Include under tab “Client OK” any letter, form, memo or phone message regarding the client’s authority to us to settle case. If none, ask attorney about it and put memo as to what’s said under this tab.

  1. Check Lists 

__7a.   Include on left side under negotiation history this check list. MAKE SURE EVERY APPLICABLE ITEM HAS BEEN REVIEWED, COMPLETED AND CHECKED OFF

__7b.   Put copy of attorney settlement check list under above check list.

__7c.   Put your name on the top right side of the settlement checklist in the green file after you have filled it out to show you have gone through the check list.

  1. Summary Sheet 

__8a.   Check case summary sheet. Make certain it is accurate and current. Put on left side of file over correspondence.



  1. Insurance 

__9a.   Include under tab “Ins” on left side of file any interrogatories which give insurance coverage.

__9b.   Copy any memos, letters etc. which might affect insurance coverage. Put under same tab.

  1. Subrogation

You must verify subrogation amounts for settlement negotiation conferences or mediation.

  1. NOTICE 

It is very important that we give notice to the proper people of any settlement conference or mediation of any kind. We normally would send such people a copy of whatever we submit and invite them to attend or be available during the settlement proceedings. Ask the attorney about the following:

__1.     Normally our client must attend the mediation. Ask attorney. If client attendance required:

__1a.   Send client form letter explaining about mediation

__1b.   Ask attorney if a client conference with attorney in advance of conference is needed. Find out if that should be before the day of hearing or day of hearing and arrange with client.

__1c.   Ask attorney if meeting on day of mediation with client should be arranged. If so, allow normally 30 minutes for this conference. Normally this will be in the same place as where the mediation is going to take place. Make sure the letter spells this out where the meeting will take place.

__1d.   Out of town clients. If the Client is traveling some distance ask the lawyer about putting the client up the night before

__2.     Associate Attorney. Make sure associate counsel is aware of the conference.

__3.     Labor & Industries: RCW 51.24.030 requires notice to the Dept. of L & I of any complaint filed as well as pleadings etc. They MUST be given notice of any settlement proceedings. Check with the attorney as to what documents should be provided to them.

__4.     DSHS RCW 43.20b.070 requires notice to the DSHS of the filing of any complaint as well as other information. Under RCW 74.09.180 and 43.20B.060 DSHS is given a lien against any settlement. Check with the attorney as to whether notice should be given to DSHS of mediation and what documents should be provided.

__5.     SUBROGATION & ERISA CLAIMANTS Subrogation claimants must be notified. Check with the attorney about this as it is very important. Ask who to notify and what to say.


Check on the following. This information should be in the green file under a tab “Subro” on the left side:

__1.     Labor & Industries: Verify amounts due in repayment.

__2.     DSHS Verify amounts due in repayment.

__3.     Medicare. 42 USC 1395 gives them rights of reimbursement. They must be considered before any settlement is made. Ask if verification is necessary.

__4.     ERISA. Private insurance claiming privileges under ERISA must be considered before any settlement can be reached. Ask if verification is necessary. 

__5.     MEDICAL INS. Subrogation claimed by medical insurance carriers must be considered. Verify amount due.

__6.     Other: Review file and discuss with attorney and Nick any other subrogation or liens that must be verified before the mediation.

__7.     Make sure the list of subrogation claimants and amounts are provided to bookkeeper.


The following applies to mediation. These steps apply where we have agreed with the defense to voluntarily submit the matter to non-binding mediation. 


Mediation Materials & Demand Letter 


__1.     See previous “Demand Letter” section in this check list. Follow with respect to the material for mediation. Note:



__1a.   Be sure client gets copy of any mediation letter with attachments and copy put in green file. Send client copy of any settlement video as well.


__2.     Time for Mediation: Do not schedule any mediation for earlier then 9:00 am or to last later than  12:00 noon unless you have the permission of the lawyer.

__3.     Settlement Video: If there is a video made for settlement purposes:

__3a.   Have tickler system to make sure we have it far enough in advance for lawyer to edit to final version

__3b.   Check with lawyer to see if copy should be sent to a claims person in advance of meeting

__3c.   Make sure copy is available for client, for defense lawyer, insurance adjuster plus our office.

__3d.   Find out from lawyer if copies should be sent to our treating doctors or key experts. Have tickler to find this out.

  1. Subrogation Issues

__1.     Include subrogation information

Cross examination & testimony Notebook:

__1.     Make very sure the cross examination notebook is complete. Ask attorney if question about contents.

__2.     Make sure testimony notebook is complete. The testimony notebook must contain the latest summaries of depositions, affidavits or other information about witness. Review notebooks to insure it is complete.

  1. Settlement file:

__1.     Prepare settlement folder. See section on settlement file. Follow steps outlined.

  1. Attorney Preparation 

__1      put in attorney’s office at least 24 hours before the scheduled conference:

__1a.   The cross examination notebook

__1b.   The testimony notebook

__1c.   The green settlement file

__1d.   The client trial file

__1e.   One yellow pad

__1f.    A written memo or reminder to take the following to the mediation:

  2. present worth calculators
  3. extra work
  4. Calculator
  5. Portable Computer, Paper & Printer

__1.     Write client. Advise client about following:

__a.     Explain terms of settlement

__b.     should client consider new wills? Refer to estate lawyer

__c.     should client consider increasing their liability insurance on car, house, boat etc.? Buy an excess policy?

__d.     Suggest client get financial advice. Give names?


__1.     Prepare diary reminders about each of above attorney asks client to take care of to see if done or not

__2.     Work with bookkeeper re final settlement. Make sure she has copies of all relevant settlement documents

__1.     Notify: Notify the following people that the case has been settled. Secretary to do Tickler to see this is done.

  1. Bookkeeper at our office
  2. Witnesses deposed or notified of any trial date
  3. expert witnesses – with request for billing – see Jeanne about this
  4. Associate attorney
  5. Court if case pending.


__2.     Client Letter. Be sure to send standard form letter to the client advising there will be a delay in disbursing money and recommending client get advice about settlement money. Note alternative language re our collecting interest on our fee.

__3.     Collect bills & suborn write experts, creditors and subrogation people. Contact associate attorney re costs. Secretary to do tickler to see this is done.

__4.     Settlement Breakdown: Bookkeeper to prepare settlement breakdown for attorney approval and client approval. Paralegal to do tickler to see this done.

__5.     Collect the money. Every settlement should have deadline for receipt of the money. Ask the attorney. Paralegal to prepare a tickler to the attorney to see if collected. Bookkeeper to do tickler get settlement check.

__6.     When money here. When money received advice attorney

__7.     Form Disbursement letter Be sure to use standard letter enclosing check advising client unable to give tax information, advising the amount of any interest earned, indicating anything significant re subrogation or money held back.

__8.     Delivering client money. Attorney to present final settlement check to client if clients comes in.

__9.     Minor Child Proceeds 

__ (1) if minor involved must follow approval procedure

  1. Appointment GAL
  2. Guardianship?
  3. Petition for approval/fees/division
Posted in Settlement, Uncategorized | Leave a comment


For the uninitiated “Whack a Mole” is a game invented in 1976 involving a machine where plastic moles pop up from holes at random. The object of the game is to hit them on the head driving them back into their holes and adding a score for doing so. So, my question is are you a “whack a mole” trial lawyer or do you prepare for trial? There are trial lawyers who, with a minimum amount of planning and preparation, try their case and react to things as they happen during trial. They wait until something pops up in trial and then deal with it as best they can. But, there are lawyers who spend quality time thinking about their trials and developing plans as well as tactics to deal with likely developments in trial. Which are you?

Of course one cannot know for sure what might happen during trial at every stage  particularly lengthy trials. However, one can make a reasonable effort to prepare for potential developments as well as plan the trial strategy in advance. The things that can be considered in planning pretrial include:

1. The ideal jury profile. Jurors you would most like to have on your jury and jurors you most would not like to have on your jury.

2. What are the three strongest points in your favor? What are the three most serious negative factors in your case? How will you deal with these in opening statement throughout the trial?

3. What  is the basic theme of the entire case? What is the most fundamental and compelling issue in your favor? What is the best way in which to continually advance this theme throughout the trial? How should it be framed?

4. What are the most serious negative aspects or issues in your case? How will you deal with this in jury selection, opening statement, witness examination and summation?

5. What is the best witness sequence that you would like to have if possible? Should the defendant or defendant representatives be called in your case in chief? If so, should that be done live or by deposition? When is the best time to involve such witnesses in the sequence of witnesses?

6. How can you trim back the number of experts , exhibits and witnesses you plan to call to streamline your case and make it simple?

7. What are the likely defense tactics, including borderline unethical tactics, that might happen during this trial and how will you deal with them in trial?

8. What are the best exhibits, including Keynote or PowerPoint that you should use from opening statement through trial? How can they be improved? What are your plans if the technical equipment fails or the court does not allow use of some of them?

9. What legal issues are likely or potentially going to be raised during trial? Do you have a short brief or a copy of a compelling case on that point which you can give to the judge, the clerk, and the defense counsel?

10. Do you have a reminder to keep in front  of you throughout the trial of the theme, the three key plaintiff issues and you response to the primary defense issues?

These are just ten of the things you can plan ahead for at trial. Experience has shown that it is unlikely that you will not have a surprise, an unexpected problem or an unanticipated obstacle during a trial, especially a long one. You can’t anticipate everything, but to the extent you can plan ahead and be prepared you are so much better able to respond than if you try cases “from the seat of your pants.” You should be spontaneous and not be someone who reads their opening statement or witness questions. But that doesn’t mean that you can’t fully prepare for as much as you can in advance. Be prepared. Don’t be a “whack a mole” trial lawyer.

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