Trial advice from the peanut gallery

# Trial advice from the peanut gallery

This may not be of much benefit to you, but I thought I’d share a practical example of my views involving a trial. My partner, who is an excellent lawyer, is involved in a medical malpractice case where his elderly client experienced symptoms of complications the night of her surgery. The nurse didn’t call the doctor or take action and she suffered partial paralysis. The doctor was upset about it, reported it to administration and complained to the nurse. The suit is against the hospital who is defending the case by blaming the doctor, denying nurse negligence and claiming the delay in treatment wasn’t a cause anyway. It’s a difficult case made more complicated by the fact the client died before the trial began. With tough choices, he elected to leave a nurse on the jury. The jury was allowed to submit written questions to witnesses under our rules. My partner asked the members of the firm for advice about arguing the case and damages. Here was my response:

After almost fifty years of trying lawsuits I’ve learned a few things. One thing I’ve learned is that at this stage of a trial, just before closing argument, there is very little advice you are given as the trial lawyer you can assimilate and utilize even if you want to because the lawyer is simply too far into the case to be able to be open to advice no matter how good the intentions. With that in mind here are comments which are probably of little assistance.

1.I did not like the jury questions the judge read to the jury at all. They indicate to me that there are negative people or a negative person on the jury. I’d review the questions they have asked and I would try to answer the more serious one in argument giving credit to the jury for their insight in asking them.

3. I think it critical that you elevate this case above a mere malpractice case to get a verdict. A mere malpractice case here is one involving a nice old woman who died and her relatives are waiting for a pay off that will do her no good. That’s a tough case to win. If, however, this case is about setting the rules and standards for how nurses should regard elderly patients in a hospital and it’s about the importance of doctors having the courage to speak out even when punished for doing so, that’s an entirely different case which impacts each juror.

4. This looks like a tough, hard jury to me. I’d emphasize in argument they must follow the law even when they don’t agree. I’d remind them about enforcing accountability and the duty to accept responsibility because rules protect all of us. They are setting standards for hospital care of the elderly and the honesty we expect our doctors to have in speaking out when things don’t go as they should. I’d emphasize preponderance as the burden. I’d talk about the jury setting community standards.

5. As to damages, I’d argue essentially that the amount of damages reflects the measurement of the jury’s assessment of the importance of establishing rules and policy for hospitals in the care of elderly patients. The amount reflects how seriously they regard the duty of their doctor to be honest about malpractice involving hospital care. They have probably read about cases where the jury found for a person suing and awarded $1. The verdict signifies how seriously the jury took the issue involved. So the real importance of this verdict is not so much assessment of damages to the deceased client as it is assessment of the seriousness of the issues involved in the case. You need to elevate this case beyond a mere malpractice case for damages Robert. I’d explain the instruction on damages and the elements. I’d discuss what they mean. I’d refer to life expectancy and lay testimony about her and discuss her. I’d point out the instruction that death isn’t an issue. Given the looks of that jury and their questions I’d probably break the damages down for each year of life expectancy and by elements for each year and add them up to a total. I’d still be over$1 million and probably $1.475 or an odd number under$1.5 million. The actual figure you ask for at this point isn’t going to tip the scale if it is under $2 million. If you asked$10 million it would, but those against you will be against you at $100,000 or$75,000.

Lastly, this case needs an elevation of purpose in showing that their verdict directly impacts each of them and especially their parents or grand parents. Doing that is extremely more important then discussing the law, reviewing medical literature, dealing with technicalities of malpractice. If you present it as a merely a malpractice case I think you will have problems from my brief view. Well, there you are. I’d now suggest you just ignore all this advice from me and do what you think is best. Good luck.

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