"From 2004 through 2006, patient safety errors resulted in 238,337 potentially preventable deaths of U.S. Medicare patients and cost the Medicare program $8.8 billion, according to the fifth annual Patient Safety in American Hospitals Study."

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.”

The Courage to Tell The Client the Truth

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.

The Tennessee Supreme Court has announced that it is going to hear oral argument in a very important case on Wednesday, May 7th, 11:00 a.m. in Knoxville.  The case is Tennie Martin et al. v. Norfolk Southern Railway Co. et al. (Franks,  author) (Susano, dissenting) – E2006-01021-SC-R11-CV.  The issues are:

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.

The Ability to Organize

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.

The American Bar Association has released four additions to its "Civil Trial Standards."  The new standards addresss these topics:  Use of Tutorials to Assist the Court, Summary Exhibits and Witnesses, Organizing the Complex Case for Trial, and Judicial Involvement with Settlement.

Some of the earlier standards (Juror Notebooks, Juror Questioning of Witnesses, etc.) have found their way into our rules of civil procedure.

From the ABA:  "The Standards fill an important gap. They recommend procedures and otherwise furnish guidance that is not available elsewhere and are designed to foster and ensure a fair trial in both state and federal court. Critics of the jury trial have questioned the ability of jurors to decide complex cases fairly. The procedures recommended in the Civil Trial Practice Standards are particularly useful in complex cases and provide jurors the tools they need to come to fair decisions in all cases."

The Ability to Pull the Trigger

Trial lawyers a required to make a large number of decisions. Some are minor (e.g. do I ask this interrogatory in this case?) and some are major (e.g. should I settle with one of multiple defendants in a case in which several liability applies?).

Great trial lawyers have confidence in their judgment and know that, after due consideration of the relevant factors, their decision will usually be right. They know that even if their decision is wrong that most problems that arise from that decision can be fixed and, if the original issue is such that an erroneous decision cannot be fixed, more caution is required in the decision-making process (but a timely decision must still be made).

Regular readers know that one web site I frequent is that of the Federation of Defense and Corporate Counsel.  Its  "Hot Cases" section frequently has cases from other jurisdictions that I find interesting and its quarterly magazine has articles I enjoy reading.

Here is an interesting article that discusses how to introduce electronic data into evidence.  It is written by Seth Gausnell and Allison Stoll of St. Louis.

At a minimum, the article reminds us of the simple fact that we must not only gather evidence during informal and formal discovery but we must be able to get that evidence before the fact-finder.  Sometimes that task is easy, such as when the witness actually saw an event occur.  Other times, it is much more complicated.

Tennessee ranks 12th of the 50 states on the U.S. Tort Liability Index.   The list measures the  tort climate from the standpoint of the business and insurance community, so a rank of "1" is a pro-business, pro-insurance company state and a rank of "50" is that dark, dreary place inhabited by jurors who are anti-gun, anti-life, pro-child pornography, tree-hugging communists  (hereinafter referred to as "liberals") and the greedy, scum-sucking trial lawyers who love and manipulate them.

North Dakota ranks first.  Florida ranks fiftieth.    North Carolina, Virginia, and Mississippi each have a higher rank than Tennessee; the other southern states rank lower.

In terms of "litigation risks"  Tennessee has the best pro-industry ranking in the country (doesn’t that give you a warm, fuzzy feeling?).

Did you know that there was a statute that permits you to use demonstrative aids during closing argument (and probably during opening statement as well)?  Here is a  statute for your trial notebook.

T.C.A. Sec. 20-9-303 permits a lawyer "to use a blackboard, models or similar devices, also any picture, plat or exhibit introduced in evidence, in connection with his argument to the jury for the purpose of illustrating his contentions with respect to the issues which are to be decided by the jury…." The statute prohibits a lawyer from making an argument "in writing" that could not properly be made orally.

I believe that Powerpoint constitutes  a "similar device" in the 21st century.  Therefore, if you get an objection like "she can’t use that Powerpoint presentation – its not in evidence" your argument is "I am permitted to illustrate my contentions under Sec. 20-9-303."

I have written on the subject of case selection on this blog in the past.  Here is a  link  to an article on the subject that I had published recently in Trial  magazine.  (Available only to AAJ members).

I gave a speech on this subject recently in Memphis and generally received excellent reviews.  However, one attendee blew me out of the water, basically saying that I was trying to turn the law into a business.

Let me respond here (and I have no choice, since the evaluator was anonymous).

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