Monday, October 24, 2011

Wisconsin State Bar article

I was recently interviewed for an article on trial consultants for the Wisconsin State Bar online magazine. I have pasted the article for you below.

Assessing litigation outcomes: Trial consultants divulge forecasting and communication techniques

Trial consultants help litigators improve their chances of success in the courtroom with tools to help forecast juror perceptions and communicate more effectively. In this article, learn how they do it from two seasoned litigation consultants.

By Joe Forward, Legal Writer, State Bar of Wisconsin

Oct. 16, 2011 – Trial consultants give lawyers advice on many aspects of litigation, including jury selection, case presentation, and trial strategy. But what is the wisdom these consultants impart?

Milwaukee attorney Paul Scoptur of Aiken & Scoptur S.C. is a civil trial lawyer and trial consultant who assists litigators across the U.S. and Canada. He says trial consultants can help lawyers unearth the various thorns of a case, and forecast jury behavior.

For instance, trial consultants like Scoptur use information from mock trials and focus groups to uncover juror bias, perceptions, and opinions in a particular venue. This type of forecasting can give litigators insights when developing trial strategy, noting the particular pieces of a case that resonate with jurors.

“You don’t want to find out what 12 people think about your case on the first day of trial,” said Scoptur, who also teaches pretrial and trial skills at Marquette University Law School. “That’s a little late.”

These activities can also help attorneys leverage settlement negotiations if there’s data to forecast a potential jury’s decision at trial, and give lawyers clues on what communication strategies to use at trial, says litigation consultant Alan Tuerkheimer of Zagnoli McEvoy Foley LLC in Chicago.

“Some litigators just want to see the raw data from a focus group or mock trial to get a sense of damages that are possible,” said Tuerkheimer. “This might serve as a reality check.”

Tuerkheimer and Scoptur are members of the American Society of Trial Consultants (ASTC), an association of professionals with education and training in fields like psychology, communications, sociology, and law. A big part of what they do centers on assessing juror perceptions.

Focus groups and mock trials

A focus group is a sort of “market research” tool used to acquire information on the perceptions of potential jurors. Consultants conduct focus groups to assess opinions about certain issues or scenarios that correspond to the facts of case.
Scoptur says focus groups and mock trials help litigators learn what he terms “juror-proof”– the proof that is important for jurors to see and hear before they decide in favor of a party to the case.

“The juror-proof we learn from these focus groups can be surprising,” Scoptur said. “Unlike lawyer-proof, which gets you past summary judgment, juror-proof helps lawyers identify facts or aspects jurors view as important, which drive deliberations.”
Focus groups and mock trials can highlight aspects of a case that lawyers view as unimportant or irrelevant, but may be important and relevant from the juror’s perspective.

Scoptur reminds attorneys that jurors view facts differently than lawyers. “Without a test run (or two) to identify juror-proof, litigators may miss important juror perceptions or themes that can impact trial strategy,” Scoptur said. “It’s important to test drive your trial story.”

Not many Wisconsin lawyers use trial consultants or conduct focus groups, according to Scoptur. There may be a perception that consultants are too expensive, or unnecessary. But many consultants offer discrete services that are affordable, and they can offer very critical information, he says.

That includes information on jury selection. Scoptur and Tuerkheimer say lawyers often overlook the importance of voir dire, and doing so can be detrimental to the case in the long run.

Voir dire

Voir dire allows litigators to identify statutory, subjective, and objective juror bias. In Wisconsin, both sides can strike three potential jurors, and can challenge jurors for cause. Trial consultants help litigators root out bias unfavorable to the client’s case before trial.

“You can have the best case in the world, but if you have a bad jury you’re going to crash and burn,” Scoptur said. “In many cases, lawyers don’t ask the right questions to learn about particular jurors.”

He says it’s hard to overcome juror bias at trial. “If a lawyer doesn’t identify that bias early, it is unlikely he or she will change that person’s mind. And jurors will bring perceptions, biases, and attitudes to the deliberation table. We see that in focus groups all the time.”

Tuerkheimer, who has a Masters in Psychology, says many trial consultants are trained or educated on human behavior and response, and use jury research to extract information useful in voir dire.

He notes that a lawyer’s demeanor and style will greatly impact the lawyer’s ability to empanel a jury favorable to the case. Letting jurors talk, making them feel comfortable and asking the right questions, will bring more to light.
And, voir dire is the attorney’s best chance to make a good impression, to bond with jurors, he says.

“It’s important to develop the relationship at voir dire, because effective communication is crucial when the trial begins,” Tuerkheimer said. “If they like you, they are more likely to listen to your message, and absorb the information you want them to remember.”

To improve voir dire skills, Scoptur and Tuerkheimer urge lawyers to get continuing legal education on voir dire, talk to skilled lawyers, and watch lawyers in the courtroom. “Try to see what works and what doesn’t,” Scoptur said. “A good voir dire can make all the difference. And so can a bad one.”

Making the case

Trial consultants also teach lawyers effective strategies of communication based on the circumstances and the jury pool. They help litigators mold the jury’s perception of certain facts, especially in complex cases where jurors must digest massive amounts of information.

For instance, Scoptur says jurors will often remember what lawyers highlight first, the so-called spotlight effect. If the spotlight is on the plaintiff, the jurors tend to filter the facts through their perception of the plaintiff. “If I’m a plaintiff’s attorney, I want to throw a spotlight on the defendant.”

Consider Scoptur’s focus group on a breast cancer case. A lady goes to the doctor, the doctor feels a lump, but the doctor says she’s fine, and the lady goes home reassured. Of course, she has breast cancer. And now the focus group is asked to respond to the plaintiff’s actions.

“People come up with an idea in their mind of how this wouldn’t have happened to them,” Scoptur said. “It’s called defensive attribution. Every single person in the focus group said, ‘I would have gotten a second opinion.’ Well, that’s not necessarily true. But they construct a story on how this wouldn’t happen to them. And then, of course, they blame the plaintiff for not getting a second opinion.”
Scoptur says a result like this shows the plaintiff should focus the jury’s attention on the doctor first.

“If I begin by talking about the doctor who felt the lump, and should have ordered a biopsy, I am focusing on the bad conduct of the doctor,” Scoptur said. “Jurors generally filter evidence through what they hear first. So they’ll accept what reinforces the bad conduct of the doctor and reject what is contrary to it.”
Tuerkheimer says trial consulting all goes back to communication. “We try to help lawyers present a story with arguments and themes that resonate, and communicate it in the most effective way.”

That might include visuals to help jurors understand the message and other strategies to address juror diversity. “For instance, younger generations certainly absorb information differently than older ones. Lawyers must account for that when communicating the message.”


● Want more insight from a trial consultant? Check out the State Bar of Wisconsin PINNACLE Business Counsel Institute, Nov. 31 - Dec.1, in Milwaukee. Bill Healy, a trial consultant at DecisionQuest in Chicago, will speak on the topic of “jury deliberations.”

● Want to observe a real trial, including jury deliberations? You can at the 22nd Annual Institute of Trial Practice (ABOTA). From opening statements to jury deliberations, you’ll get in-depth analysis on various aspects of trial practice. The program is Friday, Nov. 4 from 8 a.m. to 5:45 p.m. at the Olympia Resort in Oconomowoc. Tuition is $229. Earn 9.5 CLE credits. Click here to view the schedule and/or to register.

● Want more information on focus groups? Check out trial consultant Paul Scoptur’s article, “What are Focus Groups Anyway?” in Massachusetts Lawyers Weekly (starting on page 2), which mentions the top 10 reasons lawyers don’t do focus groups, and why they should:

● Want to improve your voir dire skills? Check out Litigation Consultant Alan Tuerkheimer’s Wisconsin Lawyer articles on the subject: “Persuading Jurors During Voir Dire” and “Politics in Civil Jury Selection.”

Saturday, October 1, 2011

Walker set out to trample citizen's rights in Wisconsin


I have felt it coming ever since he was elected Governor of Wisconsin in November 2010. It began with tremors, that led to outrage (voiced prominently by Unions), which has led to an all out assault by him against the citizens of Wisconsin.

Under the guise of “tort-reform” and “job creation”, he has, and continues to, demolish accountability and responsibility for those businesses, corporations, and reckless individuals that injure others. But, he has traveled the state and found that employers and workers want a sense of certainty. However, the only thing certain is that he is out to undermine our civil justice system and prevent persons injured in Wisconsin from seeking compensation they rightfully deserve.

He has already made it incredibly costly (and near impossible) to pursue doctors and nursing homes that negligently or intentionally injure patients. These people now have little to no recourse for the injuries they sustain due to such carelessness because somehow, his “protections” create jobs.

He has put a severe cap on punitive damages. The award of such damages is to punish the person/company that committed the wrong and to show that tortfeasor that such conduct is reprehensible and should never happen again. Now, because “screw accountability” is his motto, said individuals or corporations may merely receive a slap on the wrist even though their actions killed a person, and the individual or corporation knew their actions could result in death.

Now he attempts to pass legislation, which again hurts all citizens. But hey, hurting citizens is fine with him as long as he can later say, “I created jobs.” These proposals are LRB 2670, LRB 2890, LRB 2939, LRB 2966 and LRB 2838.

He wants to provide immunity from lawsuits to manufacturers and sellers of medical devices/drugs if: their product received approval from the FDA (ever heard of recalls or false tests?); in a failure to warn case, the labeling was made available to the consumer, the person who prescribed the drug/device, and the labeling was in compliance with established FDA standards; and no defect in design if it undergoes a strenuous (like a tough work out?) FDA approval process.

Again, this is in the name of “tort reform” (which really means “Hey, companies, come to Wisconsin- you can produce products that kill my citizens but I, the Governor, have made it so no one will sue you and you can keep on killing) and “job creation” (which is a fancy term of art meaning screw accountability, lets make money and it does not matter at whose expense).

So WAKE UP WISCONSIN, and oppose these proposals. “Tort reform” and “job creation” are just terms a sneaky politician uses to lure you in to favoring his goals and forever abdicating your ability to obtain civil justice for an injury you sustain at no fault of your own.

Monday, July 18, 2011

Lawyer recounts his jury service

I came across this very interesting article written by a civil litigator in Minneapolis. He recounts his experience serving on a jury in a personal injury case. It affirms many of the things we see in focus groups, especially jurors bringing their life experiences into the decision making process. I think you will find it interesting.

Role reversal: A lawyer's jury service

Hundreds of us quietly gathered in the massive waiting room on the basement level of the Hennepin County Government Center. Holding our jury summonses in one hand and constantly checking our smart phones in the other, we listened as a veteran court employee told us how to fulfill our civic duty. After she finished, I raised my hand.

“If I’m on a panel and I get stricken, am I released from service? Can I go?”

“Sorry, but no,” she responded, “you come back down here and the process starts all over again.”

That was exactly what I didn’t want to hear. Since I’m a lawyer, I knew I would never be left on a jury. So, for the next two weeks, I would bounce back and forth between the courtrooms upstairs and the jury waiting room downstairs.

Ten minutes later, I found myself in the 19th floor courtroom of Judge Marilyn Rosenbaum, sitting with 11 other Hennepin County residents, answering questions from the judge and the defense attorney about my job, my experience with injuries and car accidents, and my attitudes toward insurance companies. After a break, the judge read the names of the four people who had been released from service. I was sure this would be the first of many strikes for me, the first go-round on the carousel, from courtroom to jury waiting room, over the next two weeks.

Being excused from the jury was a virtual certainty. Not only had I disclosed that I was a lawyer, but when the judge mentioned that this was a civil case, I said that I did civil litigation. When it became clear that this was an injury case, I said that I had worked on cases where plaintiffs had alleged injuries. The jurors’ attitudes about insurance came up, and I said that my father was a retired insurance company attorney. I even said that I had a case pending in front of Judge Rosenbaum, to which she responded “I wondered when you were going to bring that up.”

After a break, it came time to tell the potential jurors who had been excused by the plaintiff and defendant. The court pointed to the taxi driver who had recently been in a car accident, the information technology specialist who had a few nagging sports injuries, the retired mother of six who had recently undergone knee surgery, and the machinist who said almost nothing during voir dire. I was going to serve on the jury. I was flabbergasted.

The case was straightforward. The plaintiff—a former certified nursing assistant—was stopped at a stop sign in Minneapolis when she was rear-ended by the defendant. She claimed that the collision caused relatively minor back and neck injuries. She also alleged that the accident caused a rotator cuff tear or, at a minimum, aggravated a preexisting tear that had become asymptomatic. She charged that, because of the accident, she needed to undergo shoulder surgery. Her lawyer asked the jury for an award that would pay for missed work, medical bills and pain and suffering, mostly due to the shoulder trauma.

The defendant admitted that the collision was her fault. But she was still sympathetic, since her behavior at the scene had been exemplary and she was riding with her young student-mentee at the time. The defendant’s lawyer pointed out that the plaintiff’s rear bumper suffered only the tiniest crack. While he conceded that the plaintiff had some neck and back pain as a result, he also showed that the plaintiff did not complain about shoulder pain until considerable time had passed. The defendant’s lawyer was also critical of the plaintiff’s doctor’s opinion that the collision caused the plaintiff’s rotator cuff injury. After all, an MRI showed that the tear to her rotator cuff was present a year before the incident. And the defendant’s expert testified that repeated lifting (the very kind that nursing assistants do to help their patients), not sudden events, causes rotator tears.

In other words, it was a run-of-the-mill injury case. Not a complex fraud case or a thrilling John Grisham-style courtroom drama. But to a litigator like me, the interaction among jury members was fascinating, and the lessons learned would apply equally to bigger, more complicated cases.
Camaraderie & Deliberations

The trial lasted two days. Not a lot of time, you would think, for jury members to form bonds. But I found that there is a certain built-in camaraderie to serving on a jury. Also, there is a lot of waiting around in the courthouse hallway during a trial. During these breaks, the jurors talked about what it’s like to raise twin boys, how hard it is to get a ticket to Target Field, whether digital photography is better than “old school” film, whether public sector workers in Wisconsin should retain their collective bargaining rights, and which color of finger nail polish looks best. In short, it didn’t take long for the jury to become a tight-knit group.

Once deliberations started, things got really interesting. My fellow jurors immediately elected me—“the lawyer”—as foreperson. They called me “the lawyer” because no one remembered my name. Although it had been mentioned once or twice during voir dire, I wasn’t offended. I couldn’t remember any of the other jurors’ names, either. This, it turns out, is one of the odd things about being on a jury: Jurors are friends and strangers at the same time.

I thought it made sense to start our deliberations by trying to separate the plaintiff’s back and neck injuries from her alleged shoulder injury. But several of the jurors wondered why we would use this approach. “The lawyers said her back and neck injuries were not at issue,” one of my fellow jurors said. “To me, that means they’re not part of the trial. We aren’t supposed to award her anything for back and neck injuries.”

I was pretty sure this was wrong. While it was true that the lawyers had said the back and neck injuries were “not at issue,” that was a phrase that I could recall uttering in court, too. When I said it, I meant that both sides agreed on a certain fact or point of law. I did not mean that the fact or point of law was not material to the case.

No other juror interpreted the lawyers’ statements my way, and when we checked, we found that the jury instructions were silent on the issue. So, we wrote the judge a question. Turns out, “the lawyer” was right. The judge instructed us to consider any injury from the collision, whether it was an injury to the plaintiff’s back, to her neck, to her shoulder, or elsewhere. The lesson for attorneys: explain to the jury exactly what you mean. Don’t assume they understand your shorthand terms, like “not at issue.”

There were several things that struck me about the deliberations that followed. First, the jurors took their job seriously. More than a handful of times, I heard comments about “making sure we get this right.”

Second, jurors were intensely curious about facts that had been hinted at, but not fully developed. For example, there was a single sentence of testimony about the plaintiff’s impressive weight loss since the accident. If she was heavy at the time of the accident, could that have contributed to her shoulder pain? There was no evidence presented at trial to help answer that question, but that didn’t stop the jurors from wondering.

Also, there was a brief mention during trial that the plaintiff had been clutching the driver’s wheel tightly at the time of the accident, which may have caused her rigid arm to dig into her shoulder socket at impact. Yet there was also testimony that she did not see the defendant’s car coming or anticipate the impact. We wondered: why would she have been gripping the wheel tightly if she wasn’t expecting an impact? Again, there was so little evidence presented on this point, all we could do is wonder.
Jurors’ Perspectives

Jurors were also curious about the legal process. They wanted to know whether the defense lawyer was being paid by the defendant or by an insurance company. They wanted to know how much money the plaintiff’s lawyer would get if his client won. They wanted to know why portions of videotaped depositions had been cut out. And they directed all of their questions to “the lawyer,” even though my usual answer was “I’m sorry, but I really don’t know.” This, more than anything, is why I would caution any litigator to strike lawyers who show up on a jury panel. In a legal setting, nonlawyers are bound to defer to an attorney.

Also striking was the extent to which jurors drew on their own experiences. One juror had a son who had torn his rotator cuff playing minor league baseball. This juror agreed with the defendants’ doctor about the usual cause of rotator cuff injuries. “Rotator cuff tears come from repeated use, not from one traumatic event,” he said.

Similarly, the jurors who had been in car accidents—including myself—saw the collision through that lens. “My accident was worse than hers, and I didn’t get hurt,” one juror said. Interestingly, during voir dire, the judge and lawyers had not asked the potential jurors about their experiences in car accidents in general. They only asked whether jurors had been involved in car accidents where someone was injured. As it turns out, it would have been equally enlightening to hear about the jurors’ experiences in car accidents where no one was injured. After all, a juror who has a car accident where everyone comes away unscathed might be more likely to doubt the alleged injuries of a plaintiff, especially if the juror’s accident was more violent.

When it came to testing credibility, I was impressed that my fellow jurors looked mostly to whether a witness’s testimony matched the rest of the evidence. The jury did not focus on courtroom demeanor, or which witnesses they “liked.” For example, the plaintiff reported to one of her medical providers that the defendant was driving 30-35 miles per hour at the time of the collision. This was not consistent with the barely noticeable damage to her car, and made it appear as if the plaintiff stretched the truth when talking to a doctor. Understandably, this hurt the plaintiff’s credibility, even though all the jurors seemed to agree that she was composed and likeable on the witness stand.
Exhibits & Lawyers

The jurors were clearly not impressed by lawyers’ cross-examination techniques that merely exposed minor flaws in the witnesses’ testimony, without touching on issues that were vital to the case. For example, the defense attorney was in a huff that the plaintiff’s doctor apparently did not have all of the plaintiff’s medical records before he performed rotator cuff surgery on the plaintiff. But there was little evidence showing that this distorted his diagnosis of the plaintiff. Similarly, the plaintiff’s lawyer was appalled that the defendant’s doctor had written two reports, one of which attributed 25 percent of the plaintiff’s rotator cuff tear to the accident, and one of which said the tear had nothing to do with the accident. But when the doctor wrote the second report, he had the advantage of examining the plaintiff, while the first report was based only on medical records. The jury was satisfied that a doctor might modify his opinion, and was more concerned with what his opinion was at the time of trial than what it had been earlier.

One eye-opening aspect of deliberations was the importance of the exhibits that were with us in the jury room. I took on the task of going through the medical records one-by-one, reporting to the group any significant information. (Later, another juror double checked me.) More than the live testimony, this process allowed the jury to create a narrative and a time line that helped with deliberations. For example, our review of the medical records confirmed that the plaintiff had not complained of shoulder pain until long after the collision. It also showed that the plaintiff’s existing rotator cuff tear became no bigger as a result of the accident. Also, we saw that the plaintiff was involved in several accidents over the past 15 years, and visited a lot of providers about a host of medical issues—facts that had been mostly suppressed during the trial. I wondered why the plaintiff’s lawyer would have fought to keep these facts out of the live testimony, only to have them revealed to the jury through the exhibits.

Litigators and judges who struggle with the wording of special verdict forms and jury instructions will be gratified to hear that they, too, were significant. Nonlawyers are not typically as concerned about parsing language as lawyers are, but this group spent significant time trying to understand the meaning of key words. For example, the jury instructions stated that a person with a preexisting injury “is still entitled to recover damages for injuries directly caused by the accident.” We wondered what “directly caused” meant. Later, the instructions said that the plaintiff was entitled to recover “for any aggravation of that injury or condition.” That sealed it. An “injury” was “directly caused” by the accident if it resulted in an “aggravation” of a preexisting medical condition.
The Verdict

In the end, deliberations took about three hours. We probably could have arrived at a verdict sooner, but we didn’t rush because we wanted to “get it right.” We decided that the plaintiff had suffered from back and neck injuries for about four weeks following the accident, which prevented her from working as a nursing assistant during that time. We awarded her a small sum of money that we felt would adequately compensate her for the missed work time and the minor injuries. But we did not think that the low-speed accident had caused (or aggravated) her rotator cuff tear, so we did not award her damages related to her shoulder.

When it came time for the reading of the verdict, the other jurors were disappointed to learn that both of the parties had waived their right to appear. On TV, the parties are always standing in the courtroom when the verdict is dramatically read, and this is what the jury expected. But I wasn’t surprised. A former partner once told me that nothing good can come of appearing for the reading of the verdict. “If you lose, you have to pretend to be earnest when you congratulate the other side, and if you win, it’s unprofessional to scream and shout for joy. Either way, it’s uncomfortable. And if the jury holds it against you if you don’t show up, they can’t do anything about it, since they’ve already made their decision.”

The judge read our verdict to the empty courtroom, and asked each of us, one-by-one, to confirm that we agreed with the decision. When she asked if any of us had a question, I said “How often does a lawyer remain on the jury?” “In my 20 years on the bench, I think you’re the first civil litigator to sit on a civil jury,” she replied. Then she told us that we might get a call from the lawyers, and, if we did, it was up to us whether to talk with them.

Two hours later, the phone on my desk rang. It was the defendant’s lawyer. “Counselor, am I ever jealous of you! You had an experience that any lawyer would love to have,” he said. We talked for an hour.

The plaintiff’s lawyer never called.

Sunday, June 26, 2011

The Wisconsin Supreme Court resorts to violence

Anyone who has been following Wisconsin politics knows it has been, well, interesting. Marches on the Capitol, Senators leaving the state, midnight votes, there has been all kinds of things going on here in Wississippi. Now we have a Supreme Court judge allegedly putting a chokehold on another Supreme Court judge. His defense? He was defending himself, sort of like she flung her neck into his hands. At least its entertaining:-)

Supreme Court Justice Ann Walsh Bradley late Saturday accused fellow Justice David Prosser of putting her in a chokehold during a dispute in her office earlier this month.

"The facts are that I was demanding that he get out of my office and he put his hands around my neck in anger in a chokehold," Bradley told the Journal Sentinel.

Sources told the Journal Sentinel two very different stories Saturday about what occurred. Some confirmed Bradley's version. According to others, Bradley charged Prosser, who raised his hands to defend himself and made contact with her neck.

A joint investigation by Wisconsin Public Radio and the Wisconsin Center for Investigative Journalism first reported on the incident early Saturday, stating that Prosser "allegedly grabbed" Bradley around the neck.

Thursday, June 23, 2011

Why you should never go to the hospital in July

Came across this article, thought it would be of interest. I have personal experience with this with 2 of my kids.

Do not get sick in July. Why? You might die.

A recent study published by the Journal of General Internal Medicine reported a 10 percent spike in teaching hospital deaths during the month of July due to medical errors. We call this spike “The July Effect” and we attribute it to the influx of new interns and residents.

Typically, medical students graduate in June and begin their first year of residency training — internship — in July. This group of eager new interns invades the hospital to learn, care for patients, and make medical decisions. One problem. They don’t know what they’re doing.

Like most interns, I arrived with four years of medical school under my belt, an M.D. after my name, and virtually no practical knowledge of medicine. Although I wore the long white coat of a doctor, I kept my pockets packed with condensed medical manuals that we called our “peripheral brains” to make up for the lack of knowledge held in my actual brain. Thank God for these manuals. Otherwise I would have been part of “The July Effect.”

My first night on call. I walk down a dimly lit hallway toward my call room, the only sound the intermittent beeping of a heart monitor. Suddenly, a loud siren rings overhead. A nurse rushes out of a room right in front of me.

“Call a code!” she yells to a secretary. The nurse looks in my direction and asks, “You’re a resident, right? I need you to run this code!”

I look left, right, and behind me.

Gulp. She’s talking to me.

“OK,” I say, hoping that she hasn’t noticed that my voice has leaped an octave.

The truth is, I’ve just finished orientation, which included a course in Advanced Cardiac Life Support, but I have not spent a minute reviewing the manual. Confession: I’m not feeling all that confident.

I rushed with the nurse into the patient’s room. I see on the cardiac monitor that the patient is in ventricular fibrillation, the heart rhythm that immediately precedes death. Squeezing an oxygen mask, a nurse stands above the patient’s head. A second nurse runs medications into an IV.

“What should we do, doctor?”

My mind goes blank. I have absolutely no idea.

I pull out my “peripheral brain,” flip to the section on “ventricular fibrillation.” Aha! Got the treatment. Cardioversion - commonly called electric shocks.

[By cardioversion, I'm using a general term for restoring a heart to its correct rhythm. ]

“Get me the paddles!” I say, my voice rising.

The nurse shoves the paddles into my hands and sets the power to the appropriate level.

“Clear!” I yell, and place the paddles on the patient’s chest.

“STOP!” the nurse screams.

She grabs my hands and moves the paddles to a different spot on the patient’s chest.

One more second and I would have shocked his liver.

“Clear!” I yell again, and press the defibrillation button.

The patient jerks slightly and for an instant the heart monitor goes wild. Then it completely stops. We stand still, staring at the monitor for what seems like minutes, awaiting his new cardiac rhythm.

Beep… beep… beep.


He’s saved.

I let out a breath of relief.

Within seconds, several residents enter the room and take over for me. I gladly step aside. I go back to my call room, both exhilarated that I’ve saved a patient’s life and freaking out that I nearly made a mistake would have cost it. I’ve learned my lesson. I pull out my heart book and study it cover-to-cover until dawn.

Everyone - even doctors, especially doctors - have to learn and train in order to become proficient. Interns start out as rookies, not seasoned veterans. Experience takes time.

So if you have to go to a hospital in July, treat the new interns with patience and respect.

Then check with your nurse to make sure they know what they’re doing.

Saturday, June 4, 2011

Dont be afraid to ask if the lawsuit is frivolous

Sometimes we are afraid of the answer. "Is this a frivolous lawsuit?" "Yes."
So what if the defendant thinks it is?
I have found in my experience, the defendant usually says no.
Here is a clip from a recent deposition where I asked the defendant doctor just that.

Please check out my website

I have figured out how to add video content to my trial consulting website. Im sure it will go slow, but my aim is to add short video clips from presentations I have given that may be of interest. I also want to add deposition clips that show different deposition techniques that have worked for me.
You can access them from the home page by clicking the link "Video presentations."

So sit back, grab a handful of popcorn and let me know what you think.

Saturday, March 19, 2011

I'm back

So, I had the privilege to teach at Harvard last week at the Ultimate trial skills college. As usual, it was an incredible experience. Highlight? Participant did a closing from the point of view of a dog that was shot in a neighbor/neighbor dispute. Had me in tears.

Monday, February 14, 2011

Aren't conservatives against governmental intrusion and for state's rights?

It has always baffled me that conservatives have pushed for Federal tort deform. It seems such a contradiction to the states rights belief that conservatives have. Sure, we all know the real reason behind Federal tort deform, but still...

Anyways, I came across this blog posting from William A. Jacobson, Associate Clinical Professor, Cornell Law School and I am passing this along to you.

If You Hate The Health Care Mandate, How Can You Love Federal Tort Reform?

Medical malpractice tort reform is one of those supposed remedies frequently mentioned as a cure to lowering health care costs.

Currently being debated is H.R. 5 (most recent mark up here) which would create a federal medical malpractice reform modeled on what has taken place in California, including caps on non-economic and punitive damages and attorneys fees.

Put aside whether you support tort reform and even whether it is effective. (If you want to know, I have very mixed feelings on the policy. On the one hand, I am disgusted with the culture of ambulance chasers, something I consider an insult to the people who actually do suffer from malpractice and deserve compensation; so I am very sympathetic for the need to do something. On the other hand, I am against arbitrary caps which deprive those who need the compensation most. There has to be a third way between the free-for-all we now have and inflexible caps.)

Professor Michael Dorf of Cornell Law School raises a point -- one I have thought about before but never written about -- that there is a potential inconsistency between those committed to a limited reach of the Commerce Clause when it comes to the federal health care mandate but not federal medical malpractice reform:

"But there's also an interesting intra-conservative fight potentially brewing here. Medical malpractice lawsuits, after all, seek damages in tort, an area of law over which states have traditionally exercised sovereignty. Folks like me, who think that Congress has broad latitude to regulate under the Commerce Clause, have no difficulty seeing the package of federal limits as constitutional, even if we don't think it's desirable policy. But what about all of those self-styled patriots in tri-corner hats who go on incessantly about how the federal government is a government of enumerated powers and worry about the modern Commerce Clause jurisprudence making the feds omnipotent? Shouldn't they be worried about this federal government takeover of state tort law? You betcha....

When push comes to shove, most elected officials are fair-weather federalists. They tend to invoke states' rights when they dislike the substance of federal policy and to forget about states' rights when they like the substance of federal policy. But at least in the short run, it will be interesting to watch the intra-conservative debate on these and other issues.

Is this a fair point?

If we are against the federal government forcing us to purchase health insurance, shouldn't we also be against the federal government telling us which state common law remedies we can pursue and on what terms? Isn't this a matter for the states?

As pointed out by Dorf, an article in Politico highlights two Republican Congressmen who are raising this very issue:

The House Judiciary Committee probably will be able to approve a medical malpractice reform bill next week, but Republicans are facing one concern from their own side: Don’t mess with Texas.

At the markup Wednesday, two committee Republicans - Ted Poe and Louie Gohmert - raised concerns that the bill might override states' own limits on medical liability lawsuits. They raised doubts that the federal government has the power to do that under the Commerce Clause, and they want to make sure the bill doesn't violate states' rights under the 10th Amendment.

Unlike the Democrats who oppose the bill - on the grounds that medical lawsuit limits are unfair to the victims of malpractice - Poe and Gohmert aren't opposed to the idea of tort reform. Poe just wants to make sure Texas gets to keep its own law, which caps "pain and suffering" damages at $250,000, and Gohmert wants to look out for all of the states.

“The question is: does the federal government have the authority under the Commerce Clause to override state law on liability caps? I believe that each individual state should allow the people of that state to decide – not the federal government,” Poe said in a statement after the markup.

I think there are distinctions which could be drawn between the mandate and tort reform, since tort reform does not require that one purchase a product. Most people who are against the mandate would acknowledge that the federal government can regulate the health care system, but that the mandate is a step too far.

On the other hand, regulating the tort system is not quite the same thing as regulating the health system, although there is a relationship between the two.

Bottom line. The mandate must go. There is no reason to give up on the clear-cut issue just because other issues are less clear.

Tort reform needs a careful airing of the constitutional issues before any vote; but at this point I'd be inclined to leave it to the states. If you don't like your state's tort system, do the same thing you would do if you didn't like its tax or other systems: Move.

(Please, no "consistency is the hobgobblin of little minds" comments).

Update: Thanks to commenter Showbiz111 for pointing out that I left the word "foolish" out of the quote in parentheses immediately above, and thereby did not do justice to Emerson's text:

"A foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines. With consistency a great soul has simply nothing to do. He may as well concern himself with his shadow on the wall. Speak what you think now in hard words, and to-morrow speak what to-morrow thinks in hard words again, though it contradict every thing you said to-day. — 'Ah, so you shall be sure to be misunderstood.' — Is it so bad, then, to be misunderstood? Pythagoras was misunderstood, and Socrates, and Jesus, and Luther, and Copernicus, and Galileo, and Newton, and every pure and wise spirit that ever took flesh. To be great is to be misunderstood."

Sunday, January 30, 2011

Hot coffee

On another front, Hot Coffee, a short film produced by Susan Saladoff, was screened at the Sundance Film Festival and was picked up by HBO in an exclusive 2 year deal.
You can read about it at

The movie is a documentary which focuses on how corporations have used the memory of outlandish legal verdicts as a way to press for tort reforms and avoid jury trials through arbitration on cases that actually have merit.

Take a look at the links and pass them on.

As an example

The new legislation creates special rules for special people. Get a load of this. The new special rules exempt doctors from criminal liability if they harm another by the negligent operation or handling of a dangerous weapon, explosives or fire as long as he/she is acting within the scope of his or her practice or employment. So now a doctor can escape accountability if they negligently blow up a patient or set one on fire. Nice.

In addition, a health care provider acting in the scope of his or her practice or employment who commits an act or omission of mere inefficiency, unsatisfactory conduct, or failure in good performance as the result of inability, incapacity, inadvertency, ordinary negligence, or good faith error in judgment or discretion, is immune from criminal liability. Incapacity, like being drunk or on drugs? That makes me feel real safe.

Destruction of Wisconsin's Tort Law

Well, it's here. Our new Republican legislature has passed sweeping changes in our tort system under the illusion that it is a job creation bill. I'm not the smartest person in the world, but how does a limitation on damages in nursing home cases, Daubert, limitations on products cases, hiding state surveys and investigations and limiting people's access to a jury trial create jobs? It doesn't. But here we are, Texas north, with more destruction on the way.

I'm tired of the attacks on what we do, and I'm tired of the attacks on people who are hurt due to the neglect of others. Every act of negligence is due to someone breaking a safety rule, yet certain segments of our society believe that wrongdoers need special protection under the guise of stopping frivolous lawsuits. No one, even lawyers, like frivolous lawsuits. However, these deforms will limit access and justice to those who have meritorious claims and are deserving of getting justice.