Openings and Closings with the Rules of the Road Patrick Malone - - PowerPoint PPT Presentation

Openings and Closings with the Rules of the Road™

Patrick Malone Roadmap to a Winning System Session 6

(C) 2015 Patrick Malone

Opening Statement: a Persuasive Story

Elements of Story

ü Place, Time ü Character ü Conflict ü Crisis ü Resolution

The Story Arc

• Once upon a time …
• And every day …
• Until one day …
• And because of that …
• And because of that …
• Until finally …
• And ever since then …

Cinematic è Memorable Memorable è Persuasive

Trial Lawyer, Story Assassin

“I am now going to tell you every fact that favors the plaintiff.”

“The evidence will show this was extremely outrageous conduct.”

The Human Need for Story

How it felt Why it happened What happened

Opening Statement: the Power of Less

Opening – first draft

• On June 18, 2013, the defendant, Dr. Jones lacerated

Sherry Coates’s popliteal artery and vein while performing a knee replacement surgery.

• Dr. Jones did this by moving his oscillating saw

through a capsule, a tissue barrier which covers the knee joint and separates it from the arteries and nerves behind the knee.

• He moved the saw blade designed to cut bone into

this area behind the knee where it cut into the artery in two places and into the vein in three places.

• He put the saw into an area it should never be put.

• “We have safety rules intended

to protect the public and prevent needless harm.”

• “Here’s one such rule: _____”
• “One day the defendant broke

this rule.”

• [And somebody got badly hurt.]

Same Case: Rule-Focused Thematic Opening

• When a bone surgeon is using a power saw to cut

inside the patient’s body, the surgeon has to move carefully and slowly to make sure he doesn’t accidentally cut important blood vessels.

• If a surgeon is rushing to do his work because he’s
• verbooked himself with back-to-back surgeries,

that’s a recipe for disaster.

• On a warm day in June two years ago, disaster

happened.

• Dr Jones scheduled himself to do nine surgeries on

a single day. None of them was an emergency that had to be done that day. Three of those were complex knee replacements.

• One was on my client.

Getting to How It Felt

• Sights, sounds, smells of the scene

– Go there and observe!

• Feelings people had

– Re-enact

• Choose an actor for point of view
• Recreate in present tense
• Scene by scene

What Facts to Include

• r Omit?

Include:

– Necessary to win – Evocative of a vivid human story (sights, sounds, smells) – Bad facts that must be answered or you look shady. Omit:

• Details that pile on unneeded technical facts
• Killer facts that defendant has trouble

answering.

Why Ask Questions?

E.g., “Is what the defendant wrote about this event at the time consistent with what he says now? If he has a new version, when and how did it change? And why?”

• Keeps suspense
• Engages the jury as investigators
• Lets the case build as evidence unfolds

Closing Argument Essentials

10 Closing Essentials: A Checklist

ü Bookending of Rules/Themes announced in Opening and throughout Trial – We Kept Our Promise ü Inspiring Awe (The Place of the Jury in a Democracy) ü Defense Tactic to Sow Confusion and to Complicate What Is Simple ü Arm Your Allies with Responses (“if someone in jury room says ___, then you can say…”) ü Jury Instructions: What They Mean ü Empathy Not Sympathy ü Compensation as Balancing ü Preponderance – Tipping the Scales ü Prospective Damages from Viewpoint of Plaintiff, Plus “The New Job” (When it fits the case) ü One Shot Only

Bookending the Story: First Words, Last Words

The Closing of the Closing of the Closing (end of rebuttal)

Write this out in advance:

• Do something you’ll be proud of
• It would be terrible loss if we blessed as normal

the defense conduct here

• Simple rule of conduct – first thing I told you in
• pening – so easy to prevent the tragedy
• Now you must balance it out on the scales of

justice

• So when your family asks you what happened,

you can say: 1) We held a wrongdoer accountable; 2) We appreciated the full impact of this preventable harm on the plaintiff; 3) We rendered full justice.

Closing the Closing

So some people think that life just happens at random. Some people think we’re put here for a reason. Some people think that, may think, that you’re here on the jury, out of all of the fifty people, that it was completely random. Some people might think you’re here for a reason. I think that if you decide that you are here for a reason, that you will find the strength—and it takes strength to render justice in this case—I think that you will find the strength to do what is right without regard to the status of the parties, without any unfair deference to the educated and the powerful. But just do the right thing under the law and to render a verdict that you can take pride in and a verdict that will answer the question, are you here to enforce justice and are you here to enforce accountability for the rules to protect patient safety? Thank you.

• - Wood v. Tzeng, Prince George’s County MD Circuit Court,

closing argument by Patrick Malone

What role for awe?

“… awe imbues people with a different sense of themselves, one that is smaller, more humble and part of something larger. Our research finds that even brief experiences of awe, such as being amid beautiful tall trees, lead people to feel less narcissistic and entitled and more attuned to the common humanity people share with one another. In the great balancing act of our social lives, between the gratification of self-interest and a concern for

• thers, fleeting experiences of awe redefine the self

in terms of the collective, and orient our actions toward the needs of those around us.”

– Paul Piff and Dacher Keltner, “Why Do We Experience Awe?” New York Times, May 22, 2015

Who are the heroes

• f this story?

“In exchange for your jury service, society makes you into heroes, because it vests in you the power to save the day, and that’s what heroes do. … You all have this power in equal amounts, whether you have a Ph.D.

• r a G.E.D., on the keyboard of this

courtroom all your notes sound equally, and if you choose to work those notes together, you have the opportunity to transform an injustice into a justice.”

– Carl Bettinger, Twelve Heroes, One Voice (p. 143), from Larry Selk v. Res-Care New Mexico

Justice in the Light: Of, by, for the People

Our system of justice does not work in dark and secret rooms. American justice is achieved in open courtrooms accessible for all to watch. There is a public record where any citizen can look up the verdict of the case. There also will be a transcript of every word spoken. Your verdict will be the public declaration of what justice looked like in fairly determining the outcome of this civil controversy. Make certain it is one you are proud of.

• - Adapted from Steve Yerrid, Tampa trial lawyer

Civics Lesson: Another Take

• 170 years ago there was a man named Alexis de Tocqueville,

who wrote a famous book called Democracy in America. And in that book he talked about the power of democracy in voting. And he said that voting in a jury was just as important a part of democracy as voting in an election.

• There are two differences between voting in a jury and voting

in a ballot box. You don’t have to exercise your right to vote in an election. But you do have to vote in the jury. Jury service is the ONLY thing we are required to do – where the government can tell us to go somewhere and do something.

• And the other difference between election voting and jury

voting is when you’re voting for a candidate, you don’t have to agree with anybody. Pure individualism. But in the jury room, you are REQUIRED to deliberate, to reason together, and then to speak with one voice, the voice of truth – “ver” “dict” – and because of that the jury is often called the “conscience of the community.”

– Patrick Malone, Semsker v. Lockshin

Jury as Enforcer of Shared Values

You will have to assign responsibility for the death of Elizabeth. That's a heavy duty. Some might ask why it is you strangers, and you are strangers to us, are charged with this

• responsibility. Why don't we let the judge do it. Why don't we let the politicians do it. Why don't

we let the regulators do it. Why don't we let the industry do it. Why don't we let Graco do it. The answer is, it is our country, it is our society, it is our safety and that of our children that is at issue in this case. This jury system deserves as much respect as any regulator, any politician, and frankly any

• judge. This was fought for 800 years ago in England. It was fought for in our country. It's been

described by our ancestors as one of the most important functions any citizen can serve, and whether you quote Thomas Jefferson or Abraham Lincoln, each will tell you that when a citizen comes to serve on a jury, they are fulfilling the most important role they may have in our government. Some people think the jury system is a liberal thing. I happen to think it's a conservative

• process. Because when I talk to juries, I'm asking them to make companies take responsibility.

The acceptance of responsibility is a conservative value, not a liberal value. We're talking here about the value of life and family relationships. Those are conservative values, not liberal

• values. We all share them.

So this is not a political discussion. We are talking about closely held beliefs that all of us of whatever political bent should agree on: safety for our children, acceptance of responsibility when something has caused harm, reasonable compensation for the loss of life, reasonable compensation for the emotional distress suffered in this case.

• Dan Rottier argument, Chad U’Ren v. Graco Children’s Products Inc., Dane County (WI)

Circuit Court, Jan. 18, 2006

Plaintiffs’ Secret Weapon

Plaintiff’s Secret Weapon

“… the jury system in our country exists to protect the community. … You will decide what standards doctors must meet to protect patient health and safety․ Remember, the standards in the medical community exist for a reason…. They're to provide a medical care system that above all prevents harm that's avoidable.”

– Plaintiff’s closing argument in Georgetown v. Wheeler, 75 A.3d 280 (D.C. 2013)

Jury as Enforcer of Safety

• MR. MALONE: Thank you, Your Honor. …this is exactly what I

promised to you a week ago yesterday, that was going to be our case―turns out to be our case. These doctors knew, these dermatologists knew, that this man had a worrisome mole on his lower back, and it needed to be taken off. They documented the enlargement. They never did anything about it. And a patient, who would have had a 100 percent chance to a 95 percent chance of being alive today, if they had done the right thing at any time up to the fall of 2004, would still be with us, and we would not be here in court. We have said that this is a case where the reason we are in court is that these doctors refuse to accept responsibility for not doing their job. And that we ask you to enforce patient safety standards, basic patient safety standards, that prevent patients from falling through the cracks, because of miscommunications and because of failure to retain important medical records.

– Closing argument, Semsker v. Lockshin, Montgomery County, Md., Circuit Court

Touching the Third Rail

• Now, in the end it is your job to determine how to make [the]

plaintiffs whole for what they have had to endure. As you make those decisions, we ask yourselves [sic] to put yourselves in the plaintiffs’ shoes. What would it do to you to have your complaint broadcast to your entire office, to be the

• nly one excluded . . . .
• [After objection sustained to above argument and jury

instructed to disregard] By protecting plaintiffs’ right to complain about unlawful conduct without reprisal, you preserve the rights not just of plaintiffs but of everyone. By ensuring that plaintiffs are made whole for what they have endured, you ensure that others will be free to exercise their rights without fear. Yours is an important job and we trust that you will [do what] is right and ensure that justice is done.

Arguing Damages to Maximize Recovery

“Compensation” Means “To Balance”

Non-Economic Damages

1. “Sorrow and mental anguish” 2. “Society, companionship, comfort, guidance, kindly

• ffices, and advice”

3. For each of: Erin; Devin; ___

Jury Verdict in Dollars

“Fair and Reasonable” Verdict: Objective, logical, rational and justifiable.

Justice Is a Balancing

Economic Damages

• 1. Loss of financial support
• 2. Loss of services

“Balancing” argument

The reason this family came to court, the reason Richard started this lawsuit, hired me, hired Jon, the reason Barbara took over the case after he died is something very simple. They want justice. This shouldn’t have happened. And there’s only one way we can do justice in the civil courts. And that’s with assessing the total of the harms that have been caused and balancing them out with money. That’s all we have. I want you to read over the instructions carefully. You will see that the scales of justice, when the judge introduces in the section that talks about the damages,

• nce you get there, it says that your award, and that’s the only thing I don’t like
• n these damages is “award.” It’s not like a prize. It’s not like a lottery. This is

just pure justice. But what it says is, quote, “It must adequately and fairly compensate for what happened.” To compensate is to just balance out what happened. And then I wrote these words. “Your verdict should just be objective, logical, rational, and justifiable.” [Money damages must always be placed into the larger context of how justice is done in a civil trial. The jury must see that it ennobles them and ennobles life itself when they compensate adequately for a life wrongfully taken.] But to do that, you’ve got to consider a lot of stuff. Because the people who wrote the wrongful-death statute for the state of Maryland said there are a lot of things that have to be considered if you’re going to do justice when somebody has died wrongfully, due to somebody else’s negligence. And here’s briefly what they are.

• Semsker v. Lockshin, closing argument, as quoted in Malone, Winning

Medical Malpractice Cases with the Rules of the Road, pp. 530-531

The Time Machine Perspective: Damages from the Moment of Harm Forward

“Prospective” damages – from viewpoint of wronged person

Now, I think a way to think about these damages, especially Richard’s own damages, is to put yourself back―I put myself back on the night before August 3,

• 2006. And you imagine a conversation with Richard
• Semsker. Richard, you’re going to see the doctor

tomorrow, and he’s going to find something on your back that’s been there for a long time. It should’ve been taken

• ff before. Now you’re going to find out that it’s too late.

And you’re going to find out that these doctors had in their files the knowledge, that they threw stuff away, that they broke medical ethics. Lots of bad stuff happened, and that this should not have happened to you, Richard

• Semsker. But there’s nothing we can do about it, except

to make up for it later on down the road. (cont.)

Pain/Suffering Prospectively (cont.)

So here’s the way it’s going to work, Richard. Under our system of justice that we’ve had for two hundred years in this country, the court system will call in a group of people from the community, randomly chosen, a cross-section of the community. They will sit as the enforcers

• f the standards for patient safety, and as the people who measure the amount that you and

your family deserve to have. They will be fair, because they’re sworn to be fair. They’re sworn not to use any sympathy for either side on the thing. That’s just the way it is going to work. And they will consider a lot of unpleasant things that you are going to go through. And one of them, Richard, is the knowledge that will eat at you, that this didn’t have to happen. And the knowledge in the last fourteen months of your life, Richard, that now that you’re empty-nesters with your wife, you’re not going to enjoy what all the other empty-nesters enjoy, which is the freedom to, you know, have more fun when your kids aren’t there. And your girls, you know, they’re not going to, you’re not going to be able to be there for their milestones, their graduation. You’ll get to the high-school graduation, but you won’t get to the college graduation. You won’t get to the wedding aisle. But they will be fair. They will consider all that. I’m afraid you’re going to have a heck of a lot of bad things happen to you. You’re going to be struggling to beat this thing, and you’re going to go at it with the same calm, and the same kind of reliability of a good, compliant patient that you’ve always done throughout your life. You’re just going to go see these doctors, and whatever they suggest to you, you’re going to do it. … And you’re going to get bolts drilled into your head, to get radiation to your whole brain. You’re going to get a gamma knife to your brain. Eventually, I’m afraid to tell you, Mr. Semsker, that at the end, it will―it’s going to be so bad that you will be shrieking in pain. And it’ll be like this, because you can’t stop the pain, and the medicine can’t stop the pain in your head. But they will consider it, because they are impartial people, and they know that a peaceful, serene death is worth a lot in this country. That’s what we always say, well, at least he went

• quietly. At least it was a peaceful death. And so to make up for unfairly being deprived even of a

peaceful death, they will take that into account.

“The New Job” Assigned to Mike Wood Against His Will

But now, in essence, he’s been forced into a new job. It is just like, on April 26, 2007, when this man wakes up and he’s got this terrible pain in the entire arm, if someone were to tell him the truth, which is, Mr. Wood, I’m afraid you have just suffered a terrible injury that’s going to affect you for the rest of your life and it’s going to take away all the pleasures that you had in life. You were a doer before; now you’re going to be a bystander, you’ll ride on the back of the ATV with your wife. You’ll be able to get on the boat, but you’re not going to be able to fish or hunt or any of the things that you like to do. But the good news is, under our system of justice, if somebody does that wrongfully to you, puts you into a job that you don’t want, they have to pay for it, they have to pay a reasonable sum for it. And we’re going to bring in a group

• f citizens to consider what it’s worth, and they’ll have to consider the length of

the job that the person is being put in. And so from age sixty, you’re talking a little more than twenty years; from his current age, now three years later, he’s got about eighteen and a half years. So those are years that he’s going to be put into the job that he did not want and did not ask for and did nothing to deserve. And what is it reasonable to pay for that job? I’m going to suggest to you that a fair number is $50,000 a year, and that would add up to around $1 million for that job of being required to do a life that you don’t want to do. Some of you may think it’s worth more than that, but I suggest to you that that is the minimum.

A ‘New Job’ Argument: Burke v. Groover Christie

"I said I was going to go to general damages, and I’m going to do that now. Let’s think about it this way. Imagine on October 22nd, 2000, the day before the stroke, imagine that someone came to Sharon and announced to her that she was about to lose her career and about to have it replaced with a new job. This new job is going to involve taking a chunk out of the left side of your brain, Sharon, and it’s going to make you weak on the right side of your body, wipe

• ut all your roller skating, swimming, your dancing, your walking.

You won’t be able to carry stuff up the stairs. You’re going to have to learn how to write all over again because your right hand will be clumsy. You’re going to have trouble with jars and cans and stuff like this. And on this new job we’re giving you, Sharon, you’re going to lose the ability to have normal language fluency. Forget your ability to crack wise and entertain people, your comedy routine. It’s gone, Sharon. On your new job, Sharon, you’re not going to feel comfortable in public so you’re going to spend most of your time at home on this new job. And you’ll basically become a recluse and your only companions are going to be your computer and your mother. And your sister when she visits town.

Burke v. Groover Christie -2-

Everything is going to require an effort for you on this new job,

• Sharon. Be prepared to have fatigue and exhaustion after just a

few hours of activity. And, by the way, permanently we’re going to set your internal clock on slow. You ability to plan your daily routine is going to be gone. Everything is going to have to be scripted for you, Sharon. … But we’re going to pay you for this job, Sharon. We’re going to pay you whatever is reasonable to compensate you for this job. … This new job, by the way, Sharon, it’s not just forty of fifty hours a week like your old job. This is a twenty-four-seven job. And, by the way, there’s no holidays from this job, there’s no vacation from the job. You’re never going to get vacation and get to go back to the old Sharon. And there’s not going to be any retirement from this job. This is going to be your job, Sharon Burke, for the rest of your life to be saddled with these injuries for the next thirty-four years of your life.

Burke v. Groover Christie -3-

The good news is that you will be paid a fair price for this job. A jury of citizens will hear all the evidence and they will fairly compensate you for whatever it takes to give you some semblance of what you had before. You may have fear for the future. You may fear your mom won’t be around much longer, you may worry about the fact that you should be caring for your mom rather than vice versa. But that fear is just one of the things that their verdict will wipe out because they’ll give you enough money to fairly compensate you for this job and wipe out that fear of the future. This job has full medical benefits. All of the medical care that you ever need in this job is going to be paid for up front at a fair rate on a lump sum. However, I’ve got to say one thing Sharon. It’s only going to be one time on this lump sum. We’re going to have to predict everything in advance. …

Contact me:

Patrick A. Malone Patrick Malone & Associates, P.C. 1111 16th Street N.W. Suite 400 Washington, D.C. 20036 pmalone@patrickmalonelaw.com www.patrickmalonelaw.com 202-742-1500 202-742-1515 (fax)

Patrick Malone’s books and DVD’s can be found here: h8p://www.trialguides.com/authors/patrick-malone/