It may be unpopular and politically incorrect in this age of professional civility, but I believe, if we fulfill our role as advocates, we are very likely going to make enemies. The late Bishop Fulton J. Sheen once wrote about this fact when he said:

“You have no enemies you say.
Alas my friend the boast is poor
Those that mingle in the fray
That the brave endure must have made foes.

If you have none,
Small is the work that you have done.
You’ve smote no traitor on the hip
You’ve dashed no cup from perjured lip.
You’ve never changed a wrong to right.
You’ve been a coward in the fight.”

If we are dedicated to protecting our clients interests in the professional world of legal competition, conflict is a big part of our work. We are going to make others unhappy and even dislike us. So, how do we deal with the fact people may not like us and some even hate us as well?  We should take the advice of attorney Abraham Lincoln who said:

If I were to try to read, much less answer all the attacks, made on me, this shop might as well be closed for any other business. I do the very best I know how – the best I can; and I mean to keep on doing so until the end. If the end brings me out all right, then what is said against me won’t matter. If the end brings me out wrong, then ten angels swearing I was right would make no difference.”

The late Robert Mitchum was interviewed in 1994. He correctly observed “There are always people who will object. If you are short, tall people will diminish you. If you are tall, shorter people don’t like you. If you’re alive, people wish you were dead. I do the best I can for the most I can and if it displeases somebody, I’m sorry. I take what came and did the best I could with it.”

One day in the House of Commons a Socialist member made a verbal personal attack on Winston Churchill. When it was over, Churchill rose and said to the assembly “If I valued the opinion of the honorable gentleman, I might be offended.” What is  important is that we are acting honestly, ethically and professionally. We should try to avoid unnecessary conflict and personal disputes, but it is virtually inevitable in our  work. What does count is  how we react.

In spite of the fact we may be unpopular, we make be disliked or even worse, remember we took an oath to represent our clients with courage in spite of the consequences. It has been written by the  Sultan of Mysore in 1750, Tipu Sahib, that “In this world I would rather live two days like a tiger, then two hundred years like a sheep.”

Be strong. Do not be intimidated and do not act out of concern about being liked. Instead, do your job like a professional football  player or athlete paid to perform to the best of their ability.

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Today I’d like you to consider the over used phrase “common sense” which we use all the time in our daily communications and in trials.  You’ve heard the insistence that the answer is simple because it is just “common sense”  The claims are:  “Everyone knows it.” “It goes without saying.” “It makes total sense.” “Even my little sister could understand that.”“It’s just common sense.”  “What do you mean? It makes total sense!”“How do I know? It’s obvious! Even a child could understand it.”  Everyone talks about common sense as  if there were a agreement of understanding among all rational people on one subject or another.

We find common sense in law as well. Defense attorneys in civil cases and prosecutors in criminal cases invite the jury to use their common sense. The idea that some conclusions are so obvious that everyone would agree is too often found in our jury instructions as well. For example  see the Seventh Circuit pattern criminal jury instructions. Pattern Criminal Federal Jury Instructions for the Seventh Circuit which read:

“1.04 WEIGHING THE EVIDENCE-INFERENCES You should use common sense in weighing the evidence and consider the evidence in light of your own observations in life.”

So, what’s wrong with that you ask? Well, the first problem is that there is no such thing as “common” sense.  The word common, by definition, suggests that the idea in question is held by a large number of people. In fact, one person’s common sense is another’s total fallacy. In addition, the suggestion that if most people think something makes sense then it must be sound judgment has been disproven time and time again. Further, it is often people who are accused of not having common sense who prove that the idea being argued is completely wrong.

Albert Einstein has  said: “Common sense is the collection of prejudices acquired by age eighteen.” 

As sociologists are fond of pointing out, common sense isn’t anything like a scientific theory of the world. Rather it is a hodge-podge of accumulated advice, experiences, aphorisms, norms, received wisdom, inherited beliefs, and introspection that is neither coherent nor even internally self-consistent. Not only that, these are personal and individual to each of us and not common to all.

Therefore, since common sense isn’t common and isn’t reliable, arguing it to  the  jury or instructing the jury to use it in decision making amounts to nothing more than inviting jury nullification. Jury nullification was introduced into America in 1735 in the trial of John Peter Zenger who was tried for libel. His lawyer, Alexander Hamilton, argued that the law was unfair and invited the jury to nullify it which they did. A more recent example happened in 2013 when a  billboard in the nation’s capital stirred controversy. It told  jury members to forget the law and vote their conscience. It read – “Jury duty? Know your rights. Good jurors nullify bad laws.” It tells the jury it’s Okay to ignore the law and evidence by applying their own individual ideas under the label:  “common sense.”

When we instruct or tell jurors to use their common sense, we are saying they are not bound by the law and can instead use their mutual common sense to arrive at their verdict. That is the essence of jury nullification. Using their “common  sense” is a frequent invitation of prosecutors and we have proven examples of innocent defendants convicted of crimes as a result. A judge who in a civil case, instructs the jury  in addition to the law that they are to use their common sense and a defendant’s attorney who argues for the same thing are inviting the jury to ignore the law that the burden of proof  for plaintiff  is only that it  is more probably  true than  not true – 51%. It gives approval for the jury to ignore the law they may not like or approve of and to apply their own sense of right or wrong based upon their personal idea of common sense.

That is nothing less than anarchy We are a nation of  laws  and not men. Jurors who say they will not follow the law are excused for cause. Yet, we they instruct them it’s Okay to use their idea of common sense. The ideas are in total conflict. Since common  sense isn’t a uniform, common or definable concept we have no business instructing the jury to use it in their decision making or argue it as a device to arrive at a lawful and fair verdict. It should be considered prejudicial error to do so.

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Dr. Amy Singer has been recognized as an outstanding trial consultant for many years. Her firm, trial consultants Inc., has worked with plaintiff attorneys throughout the country. Dr. Singer and I worked on many trials in the past and the wisdom of her advice is still valid. Here are some random notes from our collaboration for your consideration.

Intangible Damage Formula She suggests this formula for the calculation of non-economic damages: apply the juror’s personal concerns and interests to appropriate analogies and assign a dollar value. Find out what they live: their job, their hobbies etc. then find an analogy to apply to that interest with a dollar value application.

Opening Statement  Summarize the case in a short paragraph or sentence: “This is a case about an  attempt to get rid of an employee without paying them what they have coming.”

Opening statement must be presented like a story. It’s an exciting, dramatic story which she says normally should not be longer than twenty minutes. .Inoculate the jury for the defenses. “The defense will try to tell you” or “they have a smoke screen defense designed to camouflage the real issue.” The first four minutes of opening must be very powerful. For greatest effect it should be delivered forcefully, intelligently and with emotion. In structuring the opening statement remember the jurors look for cause and effect. You  must connect both clearly. They need to know the circumstances or they will apply defensive attribution believing that they would never have done what the plaintiff did. They also look for consensus, that is: “does everybody do it? Is it consistent with normal behavior or is it unusual behavior?”

Malpractice case concepts The following are samples of thoughts about trial and trial persuasion from Dr. Singer in no particular order of importance.

  1. Defensive attribution: “This couldn’t happen to me” or “I would never have done that.” Jurors have inherent bias that people should get a second opinion. They believe that when people find themselves in difficult situations they should (1) know they are in over their heads (2 ) look for someone to help them and (3) investigate second opinions. If they think the problem could have been solved by the right person had they gotten a second opinion then they believe there is no excuse for ending up with the problem.
  2. Jurors want to know the chain of command, that is: who is responsible for what things that were done. The plaintiff will lose the case unless the defendant is clearly shown to be in the chain of command. It is usually best to use the hospitals own organizational chart where appropriate.
  3. There is a general reluctance on the part of jurors to award money to the parents of an injured child. They begin with the idea that it is the obligation of the parent to care for the child anyway. They are usually harder in that regard with regard to the mother of the child but they also have concerns about the parents “getting their hands” on the child’s money.
  4. It is a general feeling among jurors that doctors who ignore a patient or are unavailable or uninvolved are negligent doctors.
  5. In general jurors are unforgiving of clear warning signs that are not read, are read incorrectly or simply ignored. Jurors expect abnormalities to be checked on.
  6. Emphasize preventability. The jurors start off believing that healthcare is all about prevention, monitoring and reacting to symptoms.

In birth injury malpractice cases there are some specific ideas and analogies which may prove helpful in convincing the jury in your clients favor. Here are a few examples:

  1. The act of giving birth has been referred to as “the most dangerous journey for its length in the history of man.”
  2. The mother and the father have the right to trust and rely upon the physician and nurses. When you board an airplane you have the right to trust and rely upon the fact that the plane has been carefully checked and is safe. You have the right to trust and believe and rely upon the fact that the pilot is trained and knows how to safely fly the airplane. You have the right to believe warning signs and symptoms will be monitored and acted upon. You have no obligation to inspect the aircraft, interrogate the pilot or do anything more than trust and rely upon those who should be trained to do their job safely.
  3. Nurses are like lifeguards. The lifeguard is on duty to watch, observe and be prepared to act if there is an emergency.
  4. A baby in a hospital is like a person in an old-fashioned diving suit whose only communication is by pulling the rope to signal the person in the boat above. If they pull once there may be some concern but if they pull frantically over and over the people in the boat have a duty to react to the emergency immediately.
  5. A baby in distress is like someone in a hotel pulling the fire alarm. They can’t talk to the fire department so they rely upon the fire department responding to the warning.
  6. Every time there is an abnormal sign on the fetal strip the child is telling the doctors and nurses “I’m in trouble in here. Get me out. Please help me. I can’t breathe.”
  7. What happened here is like the unborn child only communicating with the outside world through the monitoring strip. So, at 3 PM she said to them “I’m fine.” At 4 o’clock she said “I’m having a little bit of trouble but I think I’m doing okay.” At 5 o’clock she said “I’m having real problems here” and at 5:30 she said “I need to get out and get out now I can’t breathe.” Three years ago all of her cries for help were ignored and not answered. I refuse to believe that the same thing is going to happen in this courtroom today.
  8. In a baby birth injury case Gerry Spence once argued that the doctors and nurses were like members of a baseball team. They had to work together and they had to follow the rules of the game. Instead they acted like a lifeguard holding a child’s head underwater instead of saving the drowning child and the other three lifeguards watched and did nothing.
  9. Labels carry meaning. For example” a suffocated child” or “an oxygen starved brain” have meaning. Analogies and metaphors are also important communication devices. The monitoring device was the “baby’s telephone or SOS device.” Instead the nurses and doctors “did not hear the child crying for help in the only way she could and did not respond to the babies SOS call.”

I hope that in these  random ideas there may be something that you find helpful in your own cases.

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