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Anatomy of a Civil Trial Book Excerpt

Closing Argument in a Medical Malpractice Case

A Look Under the Hood1 Patrick A. Malone

Editor’s Note: MAJ member Patrick Malone and his Rules of the Road co-author Rick Friedman have a new book out this spring: Winning Medical Malpractice Cases.

With the Rules of the Road™ Technique. Tis article is adapted from Chapter 8, "Closing Argument in a Surgical Malpractice Case." It features the actual closing by Malone in a case tried in Prince George’s County Circuit Court in 2010, along with his annotations explaining key aspects of strategy and tactics. To read more about the new book, see: malpractice-cases/. Te plaintiff ’s verdict in the featured case was affirmed by the Court of Special Appeals in an unpublished decision which you can read here: appeals_court_unreported_opinoin.pdf . 1

floor. I have cemented many shards of evidence into place over the course of the trial—with a lot of tedium, dirt, and mess; this is a floor, after all, not a chapel ceiling. Now it’s my job to draw back just far enough to show the jury that a clear pattern has emerged. It can never happen unless you first sketch out well before the opening statement an outline of what the final picture is supposed to look like. Ten you fill in the fragments as best you can, despite the defense’s efforts to harass and distract you. Your Rules of the Road supply many of the key pieces of the mosaic. But the Rules supply the form, not the picture itself, so we start first by calling the jury’s attention to some of the most striking features of the picture.


THE COURT: Ladies and gentlemen, welcome back from lunch. Now that you’ve been instructed in the law, Counsel will have an opportunity to address you with their closing arguments, and the Plaintiff will go first. Mr. Malone, are you ready?

1 Adapted from Winning Medical Malpractice Cases With the Rules of the Road™ Technique, by Patrick Malone with Rick Friedman, copyright 2012 Patrick Malone. Reprinted with permission.

ere is the plaintiff ’s lawyer’s last best chance at winning the jury. I think of my approach to persuasion at trial as akin to a mosaic artist constructing an image on a

[I try to come out swinging in a closing argument. I don’t like to thank the jury for their service or make any of the other conventional boilerplate statements that have launched a thousand snoozefest closings. We are speaking truth to power, and that requires strong, direct language.]

MR. MALONE: Tank you, Your Honor. And may it please the court. Ladies and gentlemen, I have to start with something that’s pretty strong. We’ve reached the third anniversary of this injury that Dr. Tzeng caused to Michael Wood, and Dr. Tzeng is still fighting as hard as he can to avoid accountability—

MR. ROLING: Objection. MR. MALONE: —for the harm that he caused— MR. ROLING: Objection. MR. MALONE: —to Mr. Wood. THE COURT: Objection sustained.

[As long as I am not being shut down cold in what I’m trying

to say, I try to ignore interruptions like this and keep talking. Could I have gone to the bench and protested that there was nothing objectionable in this argument? Sure, but it would have stopped my momentum with no clear gain in sight. So I kept going.]

MR. MALONE: His effort to hide began on May 24th of 2007, when he realized that he hadn’t written up any justification for the surgery that he had done six weeks before and after the stuff hits the fan, and so he finally comes up with one, in a long, written, typed-up format that has all kinds of details, that’s written at one o’clock in the morning, that he couldn’t possibly have remembered.

[Te unstated but powerful “rule” behind this introduction

to the closing argument is that no defendant should justify what he did with evidence created after the fact. Tis “preoperative” consultation note, which showed it had been dictated at 1:00 a.m. six weeks after the defendant knew the patient had been injured, had no particular “smoking guns” of fabricated evidence, but the circumstances of its creation were enough to make for a strong point.]

And now, with all of his paid professional witnesses, they

still can’t get their stories straight. First we heard Tursday morning from one paid witness who said, well, he didn’t have any of the two standard reasons for doing this surgery, which are the dizziness and the pain in the arm that’s so bad that he can’t take it anymore. But Dr. Tzeng must have thought that he had showers of emboli that were getting ready to go down the arm and that was his justification for doing the surgery. Now, then Dr. Tzeng came in on Tursday afternoon, and

here’s what he said. [Tis quotation from the trial transcript was put on the

screen at the same time I read it to the jury. (Tis is another easy-to-use feature of the Sanction program, which can create transcript block quotes directly from the court reporter’s electronic file in “txt” format.) Te visual makes for an important validation of your credibility.]

Trial Reporter / Spring 2012 39

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