As the jury announces its verdict in the courtroom, the lawyer and his client embrace. Tears flow as the client releases pent up emotions. This moment is the culmination of years of hard work, setbacks and struggles during the discovery process and at trial and finally, a verdict that signals one thing: justice has been served.
To the casual observer, a courtroom victory is a glamorous moment, but trial lawyers see a different reality. The trial lawyer works late into the night during trial, stresses over every last detail of witness preparation and courtroom exhibits and struggles with the ups and downs of trial. But in the end, there is nowhere the trial lawyer would rather be, and a plaintiff’s verdict is more than victory—it is vindication.
The trial is the end result of seemingly endless days of hard work for the trial lawyer. Every moment of a trial is carefully crafted to produce the opening statement, direct examination of law and expert witness, cross examination of opposing experts, and finally, the closing argument that will make a difference between victory and defeat.
The goal of jury selection is simple: bond with the jury. As soon as possible, you want to get the jury talking during jury selection. Tell the jury about the flaws in your case; don’t cover up weaknesses, expose them.
By sharing the danger points of your case, you build instant credibility with the jury. Why? Because the jury quickly discovers that you are just like them, a flawed human being with weaknesses and vulnerabilities.
- “If you were injured through the negligence of another, would you sue?”
- “Other than your family and your faith, what is most important to you?”
- “What type of evidence would you like to see in this case?”
Ask questions that are specific to the facts of the case. In a case involving the failure to timely treat cardiac arrest, you might ask about the jurors’ experience with cardiac arrest, whether they’ve ever seen a defibrillator in use and whether they’ve seen lives saved by the use of a defibrillator. You might ask whether the jurors are familiar with the treatment protocols for a heart attack, e.g., aspirin, nitroglycerin, heart monitor, etc.
The opening statement is your opportunity to tell a powerful story. Do not be too impassioned during opening statement. Talking fast is likely to upset everyone in the courtroom. Control the speed of the presentation. You must preemptively refute what the defense will cover in their opening.
Powerful Opening: From the moment you stand up, you want to grab the jury’s attention with a powerful statement. Don’t waste a single second with the worthless statements, “May it please the court.” Blah, blah, blah.
“Where would you think is the best place to have a heart attack? The Emergency Room. You’d think. But not for Judge Melkonian.
This was not complicated. All he needed was someone to watch over him. What did Judge Melkonian get? He got left alone in a room to die.”
Story Telling: Tell a story that will capture the jurors’ imagination. Use props to grab the jurors’ attention.
“The nurse closes the door [physically demonstrate the closing of the door]. Now they [doctors and nurses] are blind. They can’t hear and they can’t see. They don’t know anything.
[Turn a sand clock over]. And he’s running out of time.
[Later, when the sand clock runs out], “He’s run out of time. Judge Melkonian is gone.”
Damages: Show no emotion when discussing the economic losses.
“The defendants’ failure to take responsibility prevented Caroline from obtaining these fixes and helps [loss of earnings]. This money goes to other people for what Caroline needs.
None of the money for the fixes and helps make up for the greatest part of the harm: what the Judge’s death did to his children.
The greatest harm in this case are the HUMAN LOSSES of their father by his children.”
Power Ending: Weave the theme of your case into a powerful end to opening statement, e.g., “Give his family justice”.
“The hospital has refused to accept responsibility for the harms and losses it has caused.
We cannot bring back the Judge back from the dead, but what you can do, is GIVE HIS FAMILY JUSTICE.”
Direct Examination of Plaintiff’s Experts
Get to the expert’s opinions RIGHT AWAY (in less than 90 seconds). Do not waste time with the expert’s education and experience. This is boring. The jurors don’t care that your expert graduated from Harvard or is a professor at Yale. The expert should provide their qualifications at the end of their direct examination.
- What is your name?
- Are you a doctor?
- Are you licensed to practice medicine?
- Do you practice in a hospital?
- We came to ask you some questions. Do you have opinions in this case?
- Do you have a basis for your opinions?
- I will ask your opinion and then I will ask your basis.
Similarly, with an economist, you want to get the big number of economic loss in front of the jury ASAP.
- Do you have opinion?
- Is there a basis for your opinion?
- Let’s get to your opinion first and then I will ask for the basis. [Loss of $5.1 M]
- What are the categories of loss?
- Would it be helpful to use an exhibit to explain your opinion?
- What are the losses?
Demonstrative Exhibits: Use demonstrative exhibits to show the jury. In a trial involving cardiac arrest, the expert should bring a heart monitor and demonstrate on a live person (you) how it works.
Cross Examination of Defense Experts
Goal of cross examination is to push the defense experts to take an extreme position. Regardless of whether you get the answer you want, act like you’re getting somewhere. Never let the expert talk and go for the BIG ISSUE.
Don’t debate the expert about the medicine. Focus on the things that the expert has to admit, such as inconsistencies in the medical records.
The medical records indicate that Judge Melkonian was left alone, unmonitored, in a private room between 4:13 p.m. and 4:36 p.m. Hence, cross-examination of the defense experts focused on the absence of any treatment or interventions during that time period.
- Can you tell us how Judge Melkonian was doing at 4:15 p.m.? [Defense Expert’s Response: “No.”]
- Can you tell us how Judge Melkonian was doing at 4:20 p.m.? [Defense Expert’s Response: “No.”]
- Can you tell us how Judge Melkonian was doing at 4:25 p.m.? [Defense Expert’s Response: “No.”]
- Can you tell us how Judge Melkonian was doing at 4:30 p.m.? [Defense Expert’s Response: “No.”]
- Can you tell us how Judge Melkonian was doing at 4:35 p.m.? [Defense Expert’s Response: “No.”]
Build one concession upon the next. The surveillance video of the triage assessment showed that a physical examination was not performed, even though an examination was documented in the medical records. Cross examination of the defense experts focused on the importance of a physical examination and the absence of a physical exam during the triage assessment.
- “History and a physical examination are an important part of the evaluation?” [Defense Expert’s Response: “Yes.”]
- “Is it appropriate to document a chest and lung examination without putting a stethoscope on the patient?” [Defense Expert’s Response: “No.”]
- “Is that something you would do?” [Defense Expert’s Response: “No.”]
- “With active chest pain, Judge Melkonian was not even touched by the physician?” [Defense Expert’s Response: “That’s right.”]
Do not repeat the testimony of witnesses. This is boring and the jury will stop paying attention. Rehearsal is extremely important. Don’t start slowly, capture the jurors’ attention quickly. Do not talk at jurors; rather, reason with them.
Eye contact is crucial. SLOW DOWN. Use a blow up of the verdict sheet and explain how the jurors should answer each question. Show how the family is striving to survive the loss. Don’t show your anger; show the facts that got you angry.
Explain the themes of your case, e.g., the defendant’s betrayal of trust, defendant’s sidestepping their responsibility, and address the defendant’s excuses (a/k/a defenses)
Violation of Trust: Betrayal of trust is a powerful theme. Weave in the theme that the hospital betrayed the trust of their patient.
“There’s trust that’s part of this. Judge Melkonian trusted that the hospital was the safest place to go. Judge Melkonian trusted that the providers would do their job. Judge Melkonian trusted the hospital with his life.
The hospital BETRAYED THAT TRUST.”
Time is Not Equal: Explain why time is of the essence for patients with emergency medical conditions.
“All time is not equal.” [importance of time with cardiac arrest]
When a patient presents with a sprained ankle, time is not of great value. This patient can wait.
This is completely different with a patient presenting with severe chest pain. Time becomes precious. Every moment matters. When a patient says he has the sudden onset of severe chest pain, that is DEADLY SERIOUS.
Let’s recognize how important time is. Let’s honor it. But for Judge Melkonian, TIME WAS RUNNING OUT.”
Loss of a Chance: Embrace the jury instructions and weave the jury instructions into closing argument. If the jury instructions require proof that the delay in treatment resulted in a diminished chance of survival, explain the measure of proof to the jury.
“This is not a question of absolute certainty. And it would be wrong to use the wrong measure of proof. You’ve got to use the right measure of proof.
No Judge will tell you that you have to prove your case with absolute certainty. That’s like measuring distance with a thermometer. This is not the same as 1 plus 2 equals 3.
Substantial possibility of surviving a heart attack does not have to be more likely than not, does not have to be more than 50%, just more than slightly.
What is more likely than not? That’s the only way we can prove certain things. The only way you can prove things is by the preponderance of the evidence.”
Defendants’ Excuses: A common defense is that the hospital/doctor did their best in a short amount of time. Tackle this issue head-on; doing their best is not what the law requires.
Excuse: The Hospital Did Their Best
“When you go back to the jury room for deliberations, someone might ask you: ‘But didn’t the hospital do their best? Why should we hold them responsible if they did their best?’
To that person, you should say that the case is not about the hospital doing their best. It is about meeting the standard of care. The instructions given to you by the court say nothing about doing their best as an excuse for poor care.”
Sidestepping Responsibility: Explain that the defense is continuing to ignore their responsibility, even during trial, and that the jurors have the power to hold the defendant accountable.
“The defendant denies responsibility even to this day. This is our society’s only way of making the hospital meet its responsibility.
It’s fine to defend yourself when you’ve done nothing wrong. But when you’re wrong, you’re supposed to stand up and take responsibility, not sidestep responsibility, at the further expense of the family that you hurt in the first place.
And now you’ve seen the defendant spend 7 days trying to evade their responsibility right here in front of you. That’s why you have to make the hospital pay to fix what can be fixed, to help what can be helped, and to fully make up for everything that cannot be fixed or helped.
Anything less, and the hospital will permanently escape its responsibility.”
Damages: Spend time on damages in closing, don’t gloss over it. Fill in the blank for each line on the verdict sheet.
Job of the Jury:
“Your job is to fix, help and make up for the harms and losses. You are here to figure out how much it will take to make up for the harms and losses. What can be fixed and helped?”
Economic Damages (Loss of Earnings): “If a painting was worth a million dollars was destroyed by someone’s fault, you’d include a million dollars in your verdict, wouldn’t you? Well, we’re here for a human being.”
Loss of Parental Guidance: “One more visit, one more phone call, one more hug---would be worth its WEIGHT IN GOLD.”
Power Ending: End closing argument with power and emotion. Go nice and slow.
“You have the power to hold this hospital responsible. If you do not, the defendant will escape all responsibility.
The defendant ignored their responsibility then, the defendant ignored their responsibility during this trial, and they want you to ignore your responsibility now.”
The Melkonian family will never get another chance to recover for the death of Judge Melkonian. You are their only chance for justice. Only you can give justice to the family.
Only you can bring back a verdict that says THE TRUTH MATTERS.”
What a Leader Does
Always remember that your success is contingent on the work of your team. Success would not be possible without your paralegals, associate and co-counsel. When you win, give credit to your team. They deserve it.
And just maybe, you can go home knowing that you had a profound impact upon the lives of your clients. There is no better feeling in the world.
Want to see the transcripts of the direct and cross-examination of the experts witnesses in Melkonian v. Albany Medical Center? Send an email to firstname.lastname@example.org with the subject line, “I want the transcripts”, and you’ll get the full transcripts.