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.