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Anatomy of a Civil Trial

run his backhoe and his Bobcat, and he has become a supervisor, and he’s made enough money doing that that he’s not asking for a single penny from Dr. Tzeng for the disruption to his business. [I believe in plain talk when asking for damages. If the jury

is on your side, they won’t compromise on dollars unless you signal in some way that it’s okay to do so. Te defense lawyer in his closing tried to turn this “no compromise” point of ours into a “greedy plaintiff ” argument. It didn’t work for him, because we had better facts and were way ahead at that point.] But he does insist on every dollar that he’s entitled to for the

disruption to his life and to his marriage and to his loss of freedom and dignity and independence and pride. No compromise on that. Dr. Tzeng hasn’t done anything to deserve any compromise. So some people think that life just happens at random.

Some people think we’re put here for a reason. Some people think that, may think, that you’re here on the jury, out of all of the fifty people, that it was completely random. Some people might think you’re here for a reason. [“…put here for a reason.” Again, we invoke a higher purpose

for the jury’s work than simply resolving a private dispute.] I think that if you decide that you are here for a reason, that

you will find the strength—and it takes strength to render justice in this case—I think that you will find the strength to do what is right without regard to the status of the parties, without any unfair deference to the educated and the powerful. But just do the right thing under the law and to render a

verdict that you can take pride in and a verdict that will answer the question, are you here to enforce justice and are you here to enforce accountability for the rules to protect patient safety? Tank you.

Commentary I finished the closing argument by returning to the “patient

safety” and “accountability” themes, both of which I also mentioned at the start of the closing. Returning at the end to the starting point is a good way to tie up the argument with a nice ribbon. I was happy with this closing, because I could develop and repeat several themes of community values I hoped would resonate with the jury: patient safety and accountability in the liability argument and the values of liberty and honesty in damages. We were also able to tell the story of the case within the frame of “medicine as lucrative business” rather than a mere technical dispute about how a particular type of surgery should be done.

Epilogue Te jury voted for the plaintiff on both the primary

negligence count and the one for informed consent. It awarded in damages: $13,600 for past medical expenses; $10,000 for future medical expenses, $492,000 for daily care needs and lost household services; $36,000 for future counseling and adaptive devices; and $750,000 for non-economic damages to Mr. Wood, plus $150,000 to Mr. and Mrs. Wood for their loss of consortium.

Trial Reporter / Spring 2012 47

Tis latter total of $900,000 in non-economic damages was reduced by the court to $650,000, the statutory cap in Maryland at that time. Te total verdict/judgment of $1,201,600 was the maximum plaintiffs could have recovered under their damages evidence. 

Biography Patrick A. Malone is a leading patient safety advocate and

attorney who represents seriously injured people in medical malpractice, product liability and other types of lawsuits. Mr. Malone has won a long string of exceptional verdicts and settlements on behalf of his clients. His new book is Winning Medical Malpractice Cases with the Rules of the Road™ Technique. Tis book follows another best-selling trial advocacy book which Mr. Malone co-authored with Rick Friedman: Rules of the Road: A Plaintiff ’ Lawyer’s Guide to Proving Liability, which is now in its second edition. Malone appeared on the Today Show to discuss his book for patients, Te Life You Save: Nine Steps to Finding the Best Medical Care – and Avoiding the Worst. He has been recognized as a leader in the field by the Lawdragon 500 Leading Lawyers in America, Te Best Lawyers in America, and Washington, D.C. Super Lawyers. He is a fellow of the International Academy of Trial Lawyers and a member of the Inner Circle of Advocates, an invitation-only society of 100 of the top plaintiff’s lawyers in the United States. Patrick Malone practicesthroughout Maryland, the District of Columbia and Virginia.

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