Dr. Amy Singer has been recognized as an outstanding trial consultant for many years. Her firm, trial consultants Inc., www.trialconsultants.com 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.
- 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.
- 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.
- 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.
- It is a general feeling among jurors that doctors who ignore a patient or are unavailable or uninvolved are negligent doctors.
- 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.
- 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:
- The act of giving birth has been referred to as “the most dangerous journey for its length in the history of man.”
- 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.
- Nurses are like lifeguards. The lifeguard is on duty to watch, observe and be prepared to act if there is an emergency.
- 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.
- 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.
- 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.”
- 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.
- 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.
- 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.