PRESENTING THE PLAINTIFF

Transcription

1 PRESENTING THE PLAINTIFF MICHAEL P. MALLIA The Mallia Law Firm One Riverway, Suite 610 Houston, Texas (713) State Bar of Texas 12 TH ANNUAL ADVANCED MEDICAL MALPRACTICE COURSE March 17 18, 2005 Santa Fe, NM CHAPTER 19

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3 Michael P. Mallia The Mallia Law Firm, P.C. One Riverway, Suite 610 Houston, Texas (713) Biography Mike Mallia is a trial attorney specializing in medical malpractice and personal injury law at The Mallia Law Firm in Houston. He is a graduate of South Texas College of Law (1973) and is board certified in Personal Injury Trial Law and Civil Trial Law by the Texas Board of Legal Specialization. He also holds a Board Certification in Civil Trial Advocacy by the National Board of Trial Advocacy. He is Board Certified in Medical Malpractice and is a member of the Board of Directors of Professional Liability Attorneys. Mike is a Past President of the Houston Trial Lawyers Association (Board of Directors , President , President Elect ), Founding member of the Houston Trial Lawyers Foundation (Board of Directors since 1992, President ), Houston Association of Civil Trial Specialists, Houston Bar Association, Texas Trial Lawyers Association (Board of Directors since 1993, Director and Fellowship Member), Texas Association of Civil Trial Specialists, and is currently serving as a Member of District 4H23 of the Grievance Committee for the State Bar of Texas. He served as Dean of Delta Theta Phi Law Fraternity - E. E. Townes Senate from He is a member of the Association of Trial Lawyers of America, American Bar Association, the College of the State Bar of Texas, a Life Fellow of the Houston Bar Foundation, a Sustaining Founder of the Trial Lawyers for Public Justice, a Diplomat for the National Board of Professional Liability Attorneys, a Diplomat and Board of Directors member for the American Board of Professional Liability Attorneys, an Advocate of the American Board of Trial Advocates, a member of the Million Dollar Advocates Forum, and serves on the board of directors for Justice for Children. Mike has received numerous awards for his volunteer work including: the Award of Achievement for Outstanding Professional and Civil Achievement in the Greater Houston Area, the Red Apple Award as Volunteer of the Year at JFK Elementary School in 1995, Volunteer of the Year by the Houston Trial Lawyers Association in 1997, Houston Independent School District Apple Pin ( ) and was nominated for the Mayor s Award for Outstanding Volunteer Services in Mike is AV rated by Martindale Hubbell and is listed in Who s Who in Houston in 1990 and 1996, Who s Who in American Law in 1996 and , Who s Who in Executives and Professionals in 1998 and 2003, and recognized in the edition of The Best Lawyers in America published by Woodward White. Mike was recognized as a Texas Super Lawyer in Texas Monthly magazine and made H Magazine s list of Houston s Top Lawyers.

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5 Presenting the Plaintiff Chapter 19 TABLE OF CONTENTS I. BEFORE YOU CAN TELL YOUR CLIENT S STORY, YOU MUST LEARN THE STORY... 1 A. Make notes of your impressions during the first meeting with your client... 1 B. Visit your client s home... 1 C. Go through family picture albums... 1 D. Discover your client s... 1 II. PREPARING YOUR CLIENT TO TESTIFY... 1 A. Understanding the jury s perspective... 1 B. Trust in the jury to do the right thing... 1 C. Body language... 1 D. Lose the anger... 2 E. Christopher Reeves... 2 F. Don t try to teach your client to act... 2 G. Don t be afraid of your client s warts... 2 H. Plant the seeds. Let the jury harvest I. Mock trials... 3 J. Final preparations... 3 i

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7 Presenting the Plaintiff Chapter 19 PRESENTING THE PLAINTIFF I. BEFORE YOU CAN TELL YOUR CLIENT S STORY, YOU MUST LEARN THE STORY One of the biggest mistakes a lawyer makes is writing a script for his/her client. It s far better to take the time to learn your client s story, so that your client can help you tell it. Unless your client is of Academy Award material, the jury will see your client as acting, and the result will be a dramatic loss in credibility. A. Make notes of your impressions during the first meeting with your client The first time you meet your client is the closest you will ever be to total objectivity. After the first meeting, you assume the role of advocate. The deeper you immerse into the role of advocate, the less objectivity you maintain. B. Visit your client s home 1. You will learn things about your client that you could never learn in your office. Many people are intimidated by a lawyer s office, the suits, and the formal atmosphere. Even in those cases where the client is not intimidated by the office surroundings, seeing your client in his/her home will give you an entirely different perspective. 2. In his/her home you will see your client in his/her environment. Just watching how your client interacts with family and friends gives you valuable and necessary information. In his/her home you will see what s important to your client. Look at what is prominently displayed, and you ll get insight into what he/she values. Look at the books on the bookshelves, and you ll understand his/her interest. Meet and informally interview the neighbors, and you ll learn things your client cannot tell you. C. Go through family picture albums Going through family albums is a great way to begin a visit to your client s home. It is a wonderful way to get even the most shy person to talk about themselves and their family, and it will jog your client s memory to remember events that might otherwise be forgotten. People keep these albums to memorialize the most important events in their lives. These photos can also be used to the your client s story to the jury. D. Discover your client s Fears Dreams Fears Struggles Value system Best friends II. PREPARING YOUR CLIENT TO TESTIFY A. Understanding the jury s perspective Almost three decades of trying lawsuits has taught me several things about juries. The foremost lesson is that juries try really hard to do the right thing. A trial is a morality play, and from opening to close yours is a struggle to demonstrate that yours is the right side. This is why credibility and the moral high ground are so important in a trial. Next, most jurors see themselves completely fair and impartial. B. Trust in the jury to do the right thing Quite often we hear lawyers talking about how bad jurors are in today s climate. Bringing that attitude into the courtroom, whether it is a party or lawyer, spells all most certain doom. We learn from a very early age to detect when a person doesn t trust us or we don t trust them. We may not always be able to articulate the reason why, and it might be a subconscious reaction, rather than a conscious one, but the effect is the same. If the jury detects that you or your client does not trust them, the reaction will be negative and detrimental, if not fatal to your case. C. Body language We spend much of our life learning the spoken word, and certainly what we say is important, but not as important as how we say it. By simply changing the emphasis on one word, the meaning of a sentence can totally change. If you doubt either the importance or deep-rooted nature of body language, just consider the last time you communicated with an infant. That infant knows not one word of the language you speak, but you know there is communication. And from even the infant stage, there is a built in bull---- detector. Our body language also speaks as loudly and as forcibly as our words. Most of the time we are unaware of our body language. Whether we are conscious of our body language or not, it still delivers a message. If that message is inconsistent with our verbal message, we lose credibility. This is why it is very important to trust the jury--- believe that the jury will do the right thing. This trust brings confidence to your client, and allows him/her to relax and tell their story. When one is speaking from the heart, the body language will follow, and be totally appropriate. When one is nervous, this sends a message that can be misinterpreted as hiding something. Remember, the jury is coming from the perspective that they are the fairest and most impartial 1

8 Presenting the Plaintiff Chapter 19 people around. Why would someone be nervous around them? Once again, this point takes us to the importance of credibility. When a client is trying to remember the story and how to tell it, it takes skills most people do not possess to coordinate the body language with the spoken language. When the client is relaxed, comforted by the trust they have in the jury, and are telling their story---speaking from their heart----the spoken word and body language are naturally in harmony. D. Lose the anger Quite often our client s have suffered tremendous losses, and the circumstances surrounding those losses. It is quite natural for anger to be a strong emotion that your client has to deal with when recounting the tragedy. Being natural, however, doesn t mean that it is beneficial to your client s cause. Anger in the courtroom should emanate from one and only one spot in the courtroom----the jury box. If hearing your client s story invokes anger in the jury, that will be reflected in their verdict. But an interesting phenomena I have observed is that when your client expresses anger in the courtroom, it has the effect of diffusing the anger of the jury. Take whatever time is necessary to help your client lose the anger before entering the courtroom. E. Christopher Reeves I often use Christopher Reeves as an example of the prototype of the perfect plaintiff. Here is a man who has suffered the most severe injuries one can imagine, but every time you see him he has a positive attitude and outlook. Even though we all know there are times that he must experience intense frustration and even rage, his positive outlook causes us to root for him with all of our heart. Crying and complaining, like anger, have a detrimental effect on your case. It is far better to demonstrate how your client is working to overcome the obstacles placed in his/her way by their injuries than wallowing in self pity. Most people, including jurors, believe that they would act as Christopher Reeves if they were faced with that situation. While I personally believe that Reeve s courage is rare, it is more important to understand the juries perspective. F. Don t try to teach your client to act Unless you are a great teacher of acting, and your client is an extremely gifted student, you will not succeed. And by not succeeding, you will lose credibility. And when you lose credibility, you lose the trial. 2 G. Don t be afraid of your client s warts Don t be afraid of your client s warts, imperfections, and failures. These are the traits and experiences that add character to your client s story. If ignored by the plaintiff, they will be highlighted by the defense in an effort to destroy the credibility that is fundamental to your case. H. Plant the seeds. Let the jury harvest. If one views evidence as tools the jury can use to build your case for you in the jury room, then the most effective tool is the one the jury discovers on their own. This is an example of where what you don t say can have more impact than what you do say. The first time I became aware of this phenomena was in the Cullen Davis case. Davis was accused of murder and attempted murder, and was defended by Racehorse Haynes. The most damning piece of evidence was a tape recording of the defendant where he appears to admit to the acts for which he was charged. The jury acquitted. After the verdict, the jury was questioned by the press as to how they dealt with the tape recording. To everyone s surprise the jurors told of an almost inaudible click in the background. They told of how they listened over and over to that tape recording, and always heard the click. Not once during the trial did anyone mention, or, presumably, even notice, the click. From the click the jury deduced that the tape recording was a fake, and it was doctored to frame Cullen Davis. The importance of this example is that the click was evidence the jury discovered on their own. The jury took a proprietary interest in this evidence, and it trumped all the other evidence. If the jury discovers evidence on their own, it becomes very important. Which seeds to plant and how to plant them is the secret. Much of the insight into this aspect of the trial can be gained from mock trials, and listening to what the mock jury says about your case. Motive is not usually a necessary element of the plaintiff s case, but research shows it is an often piece of the puzzle the jury seeks to find. Motive is an example of an area that is commonly ripe for seed planting. We recently tried a case involving misdiagnosis of testicular cancer. Plaintiff alleged that, among other acts, the family practitioner improperly referred the plaintiff to a general surgeon instead of a urologist. Curiously, the family physician referred our client to a less-qualified general surgeon within his group rather than a well-qualified urologist that officed literally across the street. We believed he did this strictly for financial reasons. Our instincts, which were confirmed by our mock trial experience, indicated that it would be very dangerous to make this overt allegation. An allegation

9 Presenting the Plaintiff Chapter 19 of this nature would open the door for the defendants make sanctimoniously denials. They would go on to wax poetic about why they became doctors and the financial sacrifices they had made to serve their calling. We chose to simply put the facts into evidence without ever suggesting motive. Post verdict discussions with the jury revealed that this was the correct call. places in us. On the other hand, when either group strives to attain the lofty goals of our profession, there is much admiration. If the jury sees you as nobly fighting for justice and your client s rights, you will be perceived as a hero. Be a hero. I. Mock trials Mock trials can be a wonderful tool. Before you begin your mock trial, clearly list your objectives. There is no standard way of conducting a mock trial. The manner should be dictated by the objectives. Three Rules Of Mock Trials 1. Listen 2. Listen 3. Listen A mock trial can be used to test issues, evidence, including demonstrative and storyboards, credibility of witnesses, etc. The limit is simply determined by your imagination. The most valuable product of the mock trial is that it can teach you how juries decide cases. Once you learn that lesson, it will forever change how you try a lawsuit. As you construct your case, you should view it as a sculptor views his work of art. Look at it from every angle, checking to see where it varies from the template of truth and credibility. Every question should have an objective. No objective----whack it! J. Final preparations Two days before trial I believe it is time to stop working on all parts of the case other than your role. Draw strength from the fact that you are on the right side of the case. Just as it is important that your client trust in the jury, it is equally important that the trial lawyer trust in the jury system. Focus on losing the defensiveness. Defensiveness turns off juries (and virtually anyone else). Anticipate the areas that are most likely to make you defensive, and visualize yourself handling the situation with an air of complete calm. Be the type of lawyer the jury wants to see. Politicians and lawyers are said to be the two most despised groups in America. While this maybe true, it is also true that the American public is absolutely fascinated by both groups. They just can t get enough. Look at how many books, movies, and television shows are centered around these groups. While they are despised by some, that loathing comes when either a lawyer or politician abuses the great trust our system 3