This page contains a Flash digital edition of a book.
Anatomy of a Civil Trial And he’s so sloppy in doing this—and this is not comfortable,

saying this, but the truth has got to be told—he’s so sloppy doing this that he tears apart the other nerve and doesn’t even notice it. He closes the wound, pats himself on the back at the wonderful job he’s done, and then goes home. Later, once he’s confronted by the patient’s wife, who is insistent about something being wrong here, he finally admits that he may have done something wrong. He finally admits he may have severed the nerve. Te patient gets to Dr. Ducic. You’ve heard about the two

surgeries, and the possibility of the third one. And Dr. Ducic has told us that even with this third surgery, even if he robs Peter to pay Paul, to transfer these nerves over, he may get a little bit of sensation back in these dead fingers that have no sensation at all, the key fingers of the hand, but he will never get his strength back. He has a permanent, serious disability. So meantime, back in Dr. Tzeng’s camp, he realizes that he

has no justification in the record for going straight to surgery. In the operative report, it doesn’t say—usually in the—they tell you why you’re doing surgery in the preop diagnosis, and there is some kind of justification for this surgery. Now, if he had said symptomatic, you know, subclavian steal—and that’s that dizziness thing, or if he had said arm problems, he would have something in the record to justify it. But he didn’t have those, and he admits now he didn’t have those. And so he writes up a whole new consult note and backdates

it, and his experts all rely on it, that May 24 note, and that’s a note where he’s telling us even things like—this note dictated at 1:58 a.m. on May 24, 2007—he’s telling us that he has a temperature of 96, a respiration of 20, heart rate 87. Pretty vivid stuff. He’s forgotten, in the meantime, the name of the doctor

that had referred him. And there’s a blank there, and you’ll see that later in the record there is a corrected version of this where Dr. Fieldson’s name is plugged in. And that’s okay. But what is the whole reason that you write these consult

reports? Dr. Tzeng told us, a consult report is a communication tool, it’s a way of the specialist telling the generalist you were very kind to send me this patient, here’s what I found, here is my plan. He didn’t have that. And why would he bother reconstructing

one after the fact? It wasn’t to talk to Dr. Fieldson. Who was it designed to talk to? [Remember, some of your strongest arguments can be made

with questions. When listeners answer your questions in their minds the way you suggest (but don’t demand) it should be answered, you have engaged those listeners as allies.] So the reconstruction and the embellishment has got to

stop. Now it’s time for accountability. [Te advocate’s praise for the American system of justice is

an important piece of a good closing. Te goal is to elevate the jury, to get them to see their function as not merely a fact finder between private disputants, but as the enforcer of public values. In a malpractice trial, where the two sides usually have very different social stations outside the courtroom, it’s also important to stress their equality inside the court. See my discussion of this

42 Trial Reporter / Spring 2012

issue in the final section of the opening chapter, “Stirring Jurors to Take Action for Fellow Patients.”] Te first thing the Judge told you, or maybe it was the

second thing, when she gave her instructions, and I find this so inspirational, because in the United States of America—and I want to assure you that I’m as patriotic as my adversary, even though I don’t wear the flag—we are unique in the United States of America in our system of justice. She told you that all persons stand equal before the

law. Where else in the world would two people who haven’t even graduated from high school have any chance at equal consideration against somebody with prestige and education and training and status in the community? But in this courtroom, they are equal, and that is a sacred thing. And not only that, we have a system where it’s not just a

judge who might go to the same country club as the doctor who makes the decisions; it’s not just some panel of experts who see the doctor in the cafeteria and then are expected to, you know, make some, quote, “reasonable decision” about what happened and whether somebody should have to pay. No, we don’t do it that way. Since 1789 we have called in the voice of the community, people who know nothing about the case, and we ask them to reach a fair and impartial verdict, with no sympathy for either side, because we don’t want sympathy on our side—we want justice. I will fail completely in this argument if you think that this

case is just about some little surgery in a shoulder that went wrong and somebody got hurt. Tis case is about core values in our community and whether or not we uphold and honor those core values. [See the discussion in the opening chapter, “Values Matter.”

My riff on the artwork I saw outside the courtroom was based on a fortuitous discovery in mid-trial. Te lesson: keep your eyes open during trial, and always be on the lookout for material you can use to take the case to a higher plane.] I was waiting for court the other morning, and right outside

this door here there’s a panel right down there, the next panel over, and it’s a glass sculpture that the judges of this court had commissioned after they had the fire in the old building. And it’s a set of icons about things that are important in

this community. In each—and there are symbols for each one. Like, it’s very interesting, as there’s an icon for truth and it’s got an image of someone holding their hand up. Tere’s an icon for nurturing family, which is one of the issues in our case, and it’s a bird’s nest with some eggs in it. Tere are icons for liberty, and other important things. Honesty. Liberty. What is liberty? Te freedom to do what you want, when you want, as long as you don’t hurt somebody else. [We bring the damages down to core values that we all

share: in this case, liberty.] Mike Wood’s chosen liberty was hunting, fishing, tubing,

four-wheeling with the grandkids, throwing them into the air in the swimming pool, and working with his hands and building things. Tat was his choice of liberty, and that liberty has been

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