Day on Torts

An Understanding of the Human Condition and What It Takes to Motivate Jurors to Action

You can't try jury cases if you don't understand how people think.  I am not talking about how  the way other members of the club think.  Nor am I talking about the thought processes or values of  the people you see at every disease ball.  

No, I'm talking about the way that "real" people think.  The way the guy cleaning the golf carts at the club thinks.  Or the woman clearing the dirty dishes at the disease ball.  Or the woman supervising the crew on the assembly line.  Or  the guy who works a second job driving a taxi.  In other words, I'm talking about the way that jurors think.

It is hard to keep up with how real people think.   The fact of the matter is that advanced education tends to divorce one from most people in our society.    Even worse, a law school education separates you from the way ordinary people process information and the language you learn there is not juror-friendly.  Then, the money earned practicing law impacts your lifestyle and thus the people around you.  You move up a neighborhood or two, tend to surround yourself with other people who have similar lifestyles, and all of a sudden you are surrounded by those with wealth and privilege.  Those folks are usually not on juries and the way they think is simply unlike the way that real people think.

Great trial lawyers  stay in touch with how real people think and thus how they can be motivated to action.    They talk to the guy that fixes their car, the woman that cuts their hair, and the server at the barbecue restaurant.  They listen to the non-lawyers in their office and encourage their candid opinions about cases.  They use focus groups as appropriate to test themes and presentations of evidence.  They read about how to understand people and motivate them.   They use the language of the jury, not the language of their Secured Transactions  professor.   They use demonstrative aids designed to educate, not just wow, the jury. 

In summary, great trial lawyers know that the advanced education and privilege they have experienced is a handicap before a jury.   They use their best efforts to overcome that handicap by interacting with and endeavoring to understand those who will be jurors.

The rest of the series.

The Tennessee Supreme Court issued its first two tort law opinions of the year yesterday, both dealing with the same subject: the potential liability of a hospital for the acts of a non-employed,, hospital-based physician. 

The Court said  that

"to hold a hospital vicariously liable for the negligent or wrongful acts of an independent contractor physician, a plaintiff must show that (1) the hospital held itself out to the public as providing medical services; (2) the plaintiff looked to the hospital rather than to the individual physician to perform those services; and (3) the patient accepted those services in the reasonable belief that the services were provided by the hospital or a hospital employee."

The Court went on to say that  while “[a] hospital generally will be able to avoid liability by providing meaningful written notice to the patient, acknowledged at the time of admission”  there was a genuine issue of material fact whether the plaintiffs had adequate notice of the contractual arrangement between the hospital and the physicians in the two cases.  Thus, it remanded both cases to the trial court, clearing the way for a jury trial on the issue.

This is the language contained in the admission documents in the cases:  "I understand those physicians providing medical services are not agents or employees of the Hospital. This includes but is not limited to: The emergency department physicians and physicians assistants, the anesthesiologists, the radiologists, the pathologists, and the physicians’ [sic] on-call to the emergency department to render specialty services."  (Note:  the quote of the language in the  DeWald opinion stops at the word "radiologists;"  I simply assume that the rest of the language is the same because the hospitals in both cases are HCA hospitals.)  In both cases the person who signed these documents testified they did not read them (both patients came to the facility through the ER).

What is the practical impact of these decisions?  Quite frankly, there is little impact in the vast, vast majority of cases.  First, most of the physicians have more than adequate insurance coverage, and I submit that if insurance policy limits were discoverable in this state it would be very unusual for an agency claim to be asserted against a hospital for the acts of any hospital-based physician other than a hospitalist (who probably will be an employee of the hospital anyway).   Second, hospitals can protect themselves from liability by requiring hospital-based physicians to have adequate insurance coverage.  Third, hospitals will probably  be able to effectively disclaim apparent agency for  non-emergency room admissions because the patients are admitted under circumstances in which they can be reasonably expected to look at the documents. 

The cases are Boren v. Weeks, No. M2007-00628-SC-R11-CV  (Tenn. S. Ct. May 6, 2008)  (read it here) and DeWald v. HCA Health Services of Tennessee, No. M2006-02369-SC-R11-CV (Tenn. S. Ct. May 6, 2008) (read it here)

The Speaker of  the House signed a bill yesterday that makes it more difficult for patients to bring medical malpractice actions.  The Senate Speaker signed the legislation last week and therefore the bill is on its way to the Governor.

The legislation requires that a patient give at least 60 days notice to the defendants before filing a medical malpractice lawsuit. 

More significantly, the legislation requires that a certificate of merit be filed within ninety days of filing suit.  The certificate of merit must be signed by plaintiff's counsel, who is certifying that

"(1) The plaintiff or plaintiff’s counsel has consulted with one (1) or more experts who have provided a signed written statement confirming that upon information and belief they: (A) Are competent under § 29-26-115 to express opinion(s) in the case; and (B) Believe, based on the information available from the medical records concerning the care and treatment of the plaintiff for the incident(s) at issue, that there is a good faith basis to maintain the action consistent with the requirements of § 29-26-115; or

(2) The plaintiff or plaintiff’s counsel has consulted with one (1) or more experts who have provided a signed written statement confirming that upon information and belief they: (A) Are competent under § 29-26-115 to express opinion(s) in the case; and (B) Believe, based on the information available from the medical records reviewed concerning the care and treatment of the plaintiff for the incident(s) at issue and, as appropriate, information from the plaintiff or others with knowledge of the incident(s) at issue, that there are facts material to the resolution of the case that cannot be reasonably ascertained from the medical records or information reasonably available to the plaintiff or plaintiffs counsel; and that despite the absence of this information there is a good faith basis for maintaining the action as to each defendant consistent with the requirements of § 29-¬26- 115. Refusal of the defendant to release the medical records in a timely fashion or where it is impossible for the plaintiff to obtain the medical records shall waive the requirement that the expert review the medical record prior to expert certification."

The failure to file such a certificate makes the case subject to dismissal with prejudice.

Defendants who assert fault against other health care providers must file a similar certificate.

The information about who signed the certificate, what data they reviewed is not ordinarily discoverable,  However, "if a party ...prevails on the basis of the failure of an opposing party to offer any competent expert testimony as required by § 29-26-115, the court may, upon motion, compel the opposing party or party's counsel to provide to the court a copy of each such expert's signed written statement relied upon in executing the Certificate of Good Faith."  The legislation also permits a discovery deposition of the medical expert. 

Sanctions include payment of attorneys' fees and a report to the disciplinary board.  Attorneys who are repeatedly sanctioned can be required to post a bond before filing suit.

If Governor Bredesen signs the bill it will apply to  all actions filed on or after October 1, 2008.  Here is a copy of the bill.

The legislation creates a significant hurdle for filing medical malpractice actions in Tennessee.  Attorneys now face a financial penalty for filing cases without consulting an expert before or shortly after filing suit. 

I will be speaking in much more detail about this legislation  at a seminar sponsored by the Tennessee Association for Justice on June 26 in Nashville.   I will give you more information about that program in a later post.

A Healthy Respect for the Judicial System

Great trial lawyers have a healthy respect for the judicial system and, if they are jury trial lawyers, for the right to trial by jury and the jury system.  They demonstrate that respect in the way they speak and act around lawyers and non-lawyers.

Great trial lawyers have respect for the judiciary.  They know that the office is more important than the person who occupies it at any given time, and the fact that they have a personality or other conflict with a given judge does not give them license to treat that judge with disrespect.  They do not abuse a personal relationship with a judge, or lead another lawyer, client or potential client to think that their relationship with a judge will affect the outcome of a proceeding.   They do not casually inform a client that a case was lost because opposing counsel had an inappropriate relationship with a judge or that the judge was "bought off."   Indeed, they never say or suggest such a thing, unless they know it to be true, in which event they advise the district attorney or other appropriate authorities.

Great trial lawyers who try jury cases respect juries and the right to trial by jury.  They do not think that jurors are fools who cannot be expected to fulfill their duty under the law or who can be manipulated into reaching an erroneous result.  They do not blame "the jury" when they lose - they instead look to  the facts, the law, or their inability to communicate with the jury in such a way to so as to motivate them to look at the case differently as the reason for their loss. 

That being said, great trial lawyers do not necessarily assume that our judicial system is perfect and does not reform of any type.   Indeed, great trial lawyers are in the best position to know the imperfections of our legal system, and often feel compelled to improve the system to help society reach the goal of having a just, inexpensive resolution of disputes.  Thus, great trial lawyers are not afraid to speak out for change.   They are not afraid to challenge the judiciary to do its share to improve the system.  They are not afraid to point out deficiencies in legal training (before or after graduation from law school) and the impact that it has on the system.   They seek these changes not to improve the standing of current or future client but instead to improve the system to achieve the goal stated above.

The rest of the series.

The Chamber of Commerce does an annual ranking of the "lawsuit climate" in the fifty states.  The winning state - Deleware - has the most pro-business climate.  The losing state - West Virginia - has the most anti-business climate.  How are the rankings determined?  By a "sample of in-house general counsel or other senior corporate litigators to explore how reasonable and balanced the tort liability system is perceived to be by U.S. business."

Tennessee is ranked 22nd, down (or is that up?) from 6th last year. 

That's interesting, when one considers that there have been virtually no changes - and certainly no dramatic changes - in  Tennessee's substantive law in the previous year.  And the judiciary is 95 percent the same.  Perhaps Tennessee moved lower because other states moved higher.

Or perhaps the rankings have nothing to do with reality at all.

Here are the survey results for Tennessee. 

Here is the full report.

Here is a complete copy of the survey.

Here is the Wikipedia site for Kool-Aid.

A Passion for the Work

It is hard to be a great trial lawyer if you don't like what you do. Most people can quickly determine whether a lawyer – or the cashier at McDonald's – has a passion for the job. You can see that passion  in the face of a great trial lawyer, you can hear it in her voice, you can feel it in his writing. For whatever reason, great trial lawyers love what they do.

We all know lawyers who hate what they do. Indeed, we know lots of these lawyers. These lawyers do not have a chance of becoming great trial lawyers or maintaining the status of a great trial lawyer if they achieved it in the past. Why? Because becoming and staying a great trial lawyer is too much work, and the person who hates or is ambiguous about the work cannot do or continue to do the work to the extent required of a great trial lawyer. They will never reach the status because they are unwilling – indeed, unable—to do what is required to get there. And if lawyer reaches the status of a great trial lawyer but for whatever reason begins to lose passion for his or her work preparation will suffer, corners will be cut, and quality will suffer.

Some great lawyers can take any position on behalf of any client at any time. They are in it for the competition or the money or both, and it makes no difference who they represent or what position they take. They are hired guns.   I am not suggesting that these lawyers  are dishonest - if they were, they would not be great trial lawyers.  I am saying that these lawyers  do not necessarily care about the particular client or the cause when they elect to take on another case.  

Other great trial lawyers tend to pick a side. These lawyers defend doctors or sue them in medical negligence litigation. They represent shareholders or defend boards of directors in shareholder litigation. They represent employees or employers in discrimination cases. These lawyers feel more comfortable taking a side (chosen deliberately, by gravity, or a combination thereof) and sticking with it. 

Is there a link between continued passion for the work and picking a side? Perhaps. Some will argue that continued passion for the job can only come for the belief in something other than the competition and the money.  Others will argue that the passion for the profession comes from a place different than what side of the "v" you are on or the client's cause.  And yet others will say that it is the cause the drives the passion, but the cause in a particular case, not the cause in general.

What is the answer?  The answer can only come from the individual lawyer who has become a great trial lawyer or who is working to maintain that status.  What is it that motivates her to do her best, every day?  What is it that  makes him go the extra mile in every case?  In short, how does the lawyer  keep the "fire in the belly" burning?  And, more importantly, how does the fire stay hot over an entire career?

The rest of the series.

Note:  I have heard many wonderful comments about this series.  I appreciate them very much.  Some commentators, however, believe I have set the bar to becoming a great trial lawyer far too high.  I will address these  concerns in my last post on this subject, which will be somewhere around the first of June.

Indiana is not known as a particularly progressive state when it comes to tort law (or anything else for that matter).

But not even Indiana could deny a plaintiff the use of the res ipsa doctrine when the plaintiff caught on fire during surgery.

You read that right.

The plaintiff was under general anesthesia and a spark from the Bovie ignited the blow-by oxygen and the plaintiff was burned.  The court re-affirmed a prior case that said that "[c]ommon sense tells us that injury to the patient from a fire in the operating room is not a frequent or expected outcome of surgery" and that "[w]hile mere use of the electrocautery unit combined with the use of supplemental oxygen may not itself fall below the standard of care, it is easily understandable to the common person that careless use of the two could cause a fire and result in bodily injury."

The case is Cleary v. Manning, No. 18A02-0707-CV-599 (Ind. Ct. App.4/18/08).  Read the opinion here.

Vehicle rollovers result in a significant number of fatalities every year, and there has been a vigorous debate about the roll that roof strength plays in those deaths. 

Now, a new study from the Insurance Institute for HIghtway Safety reveals that stronger roofs would save lives.  The study concludes as follows:

"Increased vehicle roof strength reduces the risk of fatal or incapacitating driver injury in single-vehicle rollover crashes. This finding contradicts those from two previous studies on the topic, but the present study more tightly controlled potential confounding factors. The study focused on midsize SUVs, but there is no obvious reason similar relationships would not be found for other vehicle types, although the magnitudes of injury rate reductions may differ. Any substantial upgrade to the FMVSS 216 roof strength requirement would produce reductions in fatal and incapacitating injuries that substantially exceed existing estimates."

Here is a copy of the study.  This document discusses the issue (and other issues related to injuries and death occurring in SUVs) in lay terms.

The ability and willingness to undertake (and share with the client) a cost-benefit analyis throughout the litigation.

Things change in litigation.  For example, as mentioned in a least one previous post in this series, almost every deposition changes the value of a case. But there are many other things that impact the value of a case as well.

A personal injury client who forgets or lies about past medical or litigation history can cause severe damage to his case. A corporate defendant in a wrongful death case changes the landscape of the litigation if it is caught hiding or destroying documents. The commercial litigant may have its case hampered by a disgruntled former employee. And so on.

Great trial lawyers know  that despite their best efforts there will be events that occur that hurt their client's position. And they do their best – within the bounds of law and ethics – to cause or contribute to cause events that will adversely impact the case of  their opponent.

Thus, great trial lawyers know that it is in the client's best interest to evaluate the case at various points in the litigation process. Events may occur that provoke a higher settlement proposal – or the withdrawal of an outstanding offer. A mediation may need to be scheduled – or postponed. More discovery may be necessary – or planned discovery canceled. Great trial lawyers do not practice law on autopilot.

Great trial lawyers also take into account the costs of litigation in evaluating cases – both at the time of employment and throughout the litigation. Litigation is expensive. Clients need to have an idea about the costs of litigation to make informed decisions about settlement and trial. Great trial lawyers do not fear giving clients accurate information about litigation costs, and do not fear identifying the variables that will affect costs.   They do not deliberately understate potential costs to secure representation.

Great trial lawyers frequently represent clients who take positions in litigation as a matter of principle. Clients have a right to draw a line in the sand and pay to litigate when, from an accounting standpoint, it makes no sense to do so. These lawyers understand that the client may have other interests at issue (e.g. the need to send a message to future litigants that settlements will not be readily forthcoming, the need to protect proprietary information, etc.) that would cause them to spend more money prosecuting / defending the case than it would cost to resolve it.

That being said, great trial lawyers help such clients understand the costs attendant to acting on "principle." Thus, these lawyers carefully help the client analyze the "principle" at issue and help examine the factors that will assist the client in evaluating the how much the client is willing to spend to protect the "principle."

None of this should be read as suggesting that great lawyers encourage a client to abandon positions based on "principle." Far be it. Rather, these lawyers know that a client's early declaration of "I don't care how much it costs, this is a matter of principle" often changes after the legal bills begin to flow into the accounting office. They also know that, despite frequent initial resistance from the client, these discussions actually solidify the relationship between lawyer and client, because the client understands (or comes to understand) that the lawyer is attempting look out for the client's long-term interest.

Great trial lawyers do not initiate such discussions for the first time late in the litigation process. It is all-too-common for lawyers to silently yield to the client's "litigate at all costs" mindset at the beginning of the litigation and then begrudgingly began to inject some level of reality into the discussions only after the legal bills have piled up. Such lawyers are working from a position of fear, greed, lack of experience, or a combination thereof.

Finally, great trial lawyers also help a client understand the non-financial costs of litigation. Plaintiffs in wrongful death litigation need to know that the healing process will not truly begin until the litigation is over. Corporate and business clients need to understand that litigation will consume some amount of the productivity of the company and may impact the company's reputation. Acknowledgment of these facts does not mean that a claim should not be pursued or defended. Rather, great trial lawyers know that clients need to understand these matters so that they can make an informed decision about whether to engage in and continue with litigation.

The rest of the series.

One of my favorite publications, Lawyers USA, has an interesing article about a new test which allegedly determines whether a personal injury plaintiff is malingering.  It is called the "Fake Bad Scale."

The article says that "[a] leading critic of the test, Dr. James Butcher, PhD, a senior author of the MMPI-2 and a professor at University of Minnesota, said that the fake bad scale does not meet the standards set by other MMPI-2 scales and "greatly overestimates" malingering."

Read the article here.