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 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 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.
]]>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.
]]>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.
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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?
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.
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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.
]]>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.
]]>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 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.
]]>So begins this article found on the MSN website. The article notes that (a)"of the 270,491 deaths that occurred among patients who experienced one or more patient safety incidents, 238,337 were potentially preventable," and (b) "if all hospitals performed at the level of the top-ranked hospitals, about 220,106 patient safety incidents and 37,214 patient deaths could have been avoided, and about $2 billion could have been saved."
Here is a copy of the HealthGrades press release. It includes this interesting remark: "We now have convincing case studies that perfection is possible when will to change and improve is present and the effort is made to implement new practices. While these examples illustrate that we have a much clearer idea of what we need to do, formidable barriers remain. Many in the industry continue to deny that truly safe care is achievable, thus the status quo continues, resulting in variation in patient safety in U.S. hospitals that is large and unpredictable. Numerous studies, including the 2007 AHRQ National Healthcare Quality Report (NHQR) assessing the state of hospital quality and patient safety, conclude and support the findings the progress remains modest and variation in healthcare quality remains high.”
Here is a copy of the study itself.
One reminder. This study only covers the Medicare population. Medicare is only "for people age 65 or older, some disabled people under age 65, and people of all ages with End-Stage Renal Disease (permanent kidney failure treated with dialysis or a transplant." Thus it covers far less than one-half of the 300 million people in this country.
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Many clients don't want the truth. A number of them want re-assurance that they are "right," regardless of the reality of the situation. Others demand to know that, at the end of the day, they will prevail. And some will fire or lose confidence in a lawyer who doesn't give them what they want.
Great trial lawyers do not allow the desire to be employed in a given case, the desire of the client to hear only positive things (even if they have no basis in fact or law), or the fear of confrontation to trump their knowledge and experience. Great trial lawyers tell the client the truth – whether the client wants to hear it or not.
That doesn't mean that a great trial lawyer will use the verbal equivalent of a 2" by 4" to bring the truth home (although sometimes that is necessary). Rather, a great trial lawyer will offer opinions on the case consistent with his or her knowledge of the facts and the law at the time the inquiry is made.
Let me explain. A great trial lawyer will rarely tell a client whether they will win or lose a case at an initial interview, much less put a dollar value on the resolution of the case. First, a client may not know all the facts and there is almost certainly another side of the story. Second, the value of almost any case changes during the course of the litigation. A plaintiff who does a poor job at her deposition hurts her case. A defendant who does an excellent job helps his position. A expert who is caught in a lie hurts the party who employs him. And on and on. The point is that things change, those changes can impact the case, and a great trial lawyer is comfortable explaining that to clients.
This is not to say that great trial lawyers are wishy-washy. It is just that great trial lawyers know that things are not necessarily what they are represented to be. Some may call these lawyers "cynical;"I prefer the word "experienced." Thus, great trial lawyers help a client understand how things can change in litigation, and promise to give a more definite opinion as the level of knowledge of the case increases. Thus, a great trial lawyer manages expectations.
Good clients, the kind of folks a great lawyer wants to represent, understand that. Bad clients do not. Bad clients want guarantees before factual discovery. And, when things turn out different than represented in the initial interview, bad clients are the first to remind you of the "promises" made in that interview. Great trial lawyers know when a client is trying to box them in, and refuse to allow it to occur.
As information is learned in a given case, great trial lawyers also tell their client the truth. They give an opinion about whether to make, accept or reject a settlement proposal, or indicate that the proposal is so within the range of reason to make it a toss-up. They give these honest opinions whether the client likes the advice or not, and explain the basis for the opinion. A great trial lawyer will not hesitate to tell a client that the client is making a mistake by not taking a recommendation of the lawyer, but then will follow the client's wishes so long as the course of action is legal and ethical. In other words, great trial lawyers understand that client is the boss, and unless the client is demanding illegal or unethical action or the relationship between lawyer and client has become so impaired that the lawyer cannot adequately represent the client, the lawyer yields to the client's wishes.
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1. Whether the Court of Appeals’ majority erroneously affirmed the summary judgment granted to the Respondents where it relied on contributory negligence cases and did not analyze the parties’ comparative fault under Eaton v. McLain, 891 S.W.2d 587 (Tenn. 1994).
2. Whether the Court of Appeals’ majority erred by concluding that there were no genuine issues of material fact in determining that the decedent was more than fifty percent at fault.
This is a railroad crossing case and both issues will help answer important questions concerning the role of the trial judge hearing a motion for summary judgment in a comparative fault case where the plaintiff's fault is at issue. Watch here for more information.
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Great trial lawyers spin plates. Lots of plates. (Those of you who do not remember "The Ed Sullivan Show" may not appreciate this metaphor. Learn about it here.) Law firm management requires time. Training of associates and others requires time. Bar associations require time. Families require time. And then those pesky clients ….
Thus, a great trial lawyer uses his or her best efforts to be efficient. This is particularly true in a contingent fee practice (other things being equal the efficient lawyer receives more money for less work) but is also true in a hourly billing practice (great trial lawyers work to maximize efficiency to lower client costs). Part of being an efficient lawyer is the ability to organize or, at a minimum, recognize the lack of strength in this area and thus possess the willingness to allow another to organize for you.
At one level, this means structuring your personal and profession life in such a way so as to fulfill your obligations to yourself, your family, your law practice and your community in a way that enhances efficiency and minimizes stress. Indeed, it begins by taking a personal inventory from time to time to determine whether you are on the track you want to be on and, if not, developing a plan for structuring your life to reflect your values and priorities. This is a non-delegable duty.
At the professional level, however, a great trial lawyer may seek the help of another lawyer, a paralegal, or a secretary to keep the plates spinning. Indeed, many a great trial lawyers become very close to and dependent on someone to make sure that no plates hit the stage.
In a given case, great trial lawyers figure out a way to avoid repeating past work. Memos replace memories. Document productions are bates-stamped so that one can prove what was sent when and to provide for a ready means of reference in depositions, memos, etc. Documents produced by an opponent are organized in a method appropriate for the case. Files are structured so that a pleading or piece of correspondence can be found at 5:00 on Saturday afternoon when everyone else has gone home. Deadlines are created and monitored. Planning sessions result in to-do lists with stated deadlines, appropriate delegation and a mechanism for follow-up.
Great trial lawyers organize (or allow another to organize) for trial. A decision is made on exhibits and they are found or prepared and disclosed in a timely fashion. A plan is developed to get each exhibit admitted into evidence. "Friendly" witnesses are identified, prepared, and disclosed in a timely fashion, and then prepared for trial. "Hostile" witness are identified, disclosed in a timely fashion, and an examination prepared (including impeachment material). Evidentiary issues are identified and appropriate research done. The appropriate substantive law is captured, brought to the attention of the trial judge in an appropriate fashion, and used to create proposed jury instructions. All of this is matched against a list of the evidence necessary to prove the causes of action in the complaint (or the defenses to it, if you represent the defendant), and it is double-checked.
Logistics are considered. When do the out-of-town witnesses need to be present? Where should they stay? What is the back-up plan? What items do we need to have in the courtroom each day? Do we need technical support? Where are the electric plugs in the courtroom? Do we need a back-up computer? Is there are projector in the courtroom? Who is the person in charge of it? What time will court start each day? At what time will the court break for the day? Are there other matters on the docket that will interfere with getting a full trial day in every day? And on and on.
In summary, great trial lawyers know that organization frees the mind to do what great trial lawyers do: prepare and try a lawsuit to the best of their ability.
Every great trial lawyer knows that great trial lawyers have different styles and personalities. Great trial lawyers also come in all shapes and sizes. Race is immaterial. Gender is immaterial. Age is material, but only because some level of experience is required to become a great trial lawyer.
Knowing this, great trial lawyers are themselves. They are comfortable in their own skin, use their talents, identify and then attempt to strengthen, outright avoid or minimize their weaknesses.
Great trial lawyers watch and learn from other lawyers and others with relevant knowledge and experience, but they know they can't be someone other than themselves. They learn about a new technique at a seminar or in a book, hearing or trial and determine if it works for them. If not, they let it go.
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