At trial you want to take hold of your jurors’ attention and keep it. You want jurors to feel what you want them to feel - empowered to right a wrong - inspired to reach a just verdict a case like yours requires. To do that your trial must be based on facts (See JHPII Talks re “Facts”). Not conclusions. To help jurors relive those facts, you must retell those facts using the 5 senses - what you can see, hear, smell, taste and touch, stripping away all the oft-times intertwined opinions, interpretations, and judgments. Retelling your facts based on the 5 senses enables jurors to relive the facts of your case as if they were there. It is the most powerful tool you have as a trial lawyer to help jurors experience first-hand the facts of your case, and inspire them to act.

Trying your case is like recreating scenes that show, rather than tell, your story. Think of your trial as a series of sequential story boards. Pictures on those boards created with words and witnesses and voicemails and emails and papers and ledgers and medical appliances and policies and procedures and demonstratives discovered to recreate your client’s story and get your jurors excited about helping you right a wrong. 

Good trial lawyers sound like people. Not like lawyers. At trial you want to be calm, relaxed and in complete control. To be calm, relaxed and in complete control you must be confident in what you are about to do. To be confident in what you are about to do, you must practice. While all hell may break loose at trial, have at least 80% down cold before your trial begins. Practice what you’re going to say and how you’re going to say it. Since you’ll use words to try your case, today’s talk is about a couple of word basics. After choosing your words and putting in the work, trying your case will feel as natural to you as walking down a path. A path that, for now at least, you’ve chosen.  

Facts are much more than “the placenta tore away from the uterine wall,” or “this ambulance company overcharged the government by over $8,000,000,” or “the light was red.” Systemic and systems-based issues – why this happened – and the pain that what happened here caused - are oft-times more subtle.

General to specific. For instance, you may want to begin your opening something like this. “I’d like to take you back to January 3, 2018. Wednesday. 3 that afternoon. Here in New York. E Harlem. Metropolitan Hospital Center. Labor and delivery Dept. A patient . . .” General to Specific. Or this, “Today I’m going to tell you the story of a 13-year-old girl . . .” “. . . Do you know who she is?” General to specific.

Setting out on a journey without knowing where you’re going creates fear, uncertainty, and increased risk. As a trial lawyer when you take a case, you must begin with your end in mind. You must decide at the outset what you want to see happen - how you want your case to end. To begin with your end in mind. Once you do that, the path you’ll take to get there will come into focus. Your steps along that path will be well defined. You’ll be calm, relaxed and in complete control of yourself and your case.

You’re standing in the middle of the courtroom. It’s hot. You feel the perspiration start to bead a little on your temples. Your collar is starting to feel a bit damp too. You just spent the last 3 days picking a jury. You had to fight through countless objections and a judge that firmly believes jury selection should never take more than 3 hours no matter what the case. As deferential as you know you must be, you know too there is far too much at stake here for that.

When preparing your case for trial, focus on your path.  It’s no different from focusing on your path in the forest.  You chose your path through the forest because it will take you where you want to go.

However Big You’re Thinking, Think Bigger. Apply this to everything you do in life. To everything you do as a trial lawyer, too. As a trial lawyer, start when someone comes to you for help. Start there. The cases we handle are rarely isolated instances. The cases you handle are likely rarely isolated instances too.

As a trial lawyer you’re first, the storyteller. You tell your story in your initial complaint, in every deposition you take, in every pleading you file. You tell your story at trial, in your opening, with every cross, and when closing. You tell your story every time you file a motion or response. Whatever you file is about whatever you want it to be about – your story. It matters little what your opposition wants to waste time about, oft times to distract jurors and the court form the real story. Spend your time on your story. What your story is really about.

Ever heard the phrase, “a $1,000 saddle on a $10 horse?” While a $1,000 saddle on a $10 horse may look good (at least the saddle will), it’s not likely to win a horserace. If I want to win a horserace, I’d rather have a $10 saddle on a $1,000 horse. Wouldn’t you?

Do not mistake a conclusion for a fact. Facts tell stories. Facts bring stories to life. Facts win cases. Conclusions do not. Better to describe in great detail what happened with facts rather than share your conclusions

My dad used to say to me, “Son, Take the bridle off.” He’d say too, “Whatever happens son, you’ve got to get up, wipe that blood from the corner of your mouth, and get back in the ring.” “No fear,” he’d say. Of course, he was right. He was a great man. He taught me a lot. How to be a man. To always come from a place of power. My power. And that real men have empathy for everyone. Yes. Everyone.

Following the rules broken by the Defendants, is the story portion of your opening. I begin my stories with something akin to, “Now let me tell you the story of what happened in this case. “Please come back with me if you will to . . .” Then I tell the story of what happened in our case. I tell the story as if I’m there. In the present tense. Describing what you can see and hear. What you can touch. What people are saying and doing, thinking and feeling. What the Defendant’s do and do not do.

We start our opening statements with what the Defendants are required to do in this case. The Rules. The Rules broken by the Defendants. That caused, for instance, their patient’s death. I almost always limit my Rules to 3. 3 Rules. At most 5.

Whether the Defendants are required by the Hospital’s policies and procedures, their own Standards of Care or state and federal laws, we want the jurors to know the rules in our case immediately before they hear the facts. We want the jurors to apply these rules to the facts of our case as we tell our story in our opening.

The strength of our relationships with our clients is vital to our mutual success and our progress here at JHPII. As important are our relationships with referring lawyers. We still greet you with a firm handshake. We practice law with that same honorable mindset. Our approach allows everyone – JHPII, referring lawyers and our mutual clients – to benefit from the strength of those relationships. Clients benefit from the strengths each lawyer brings to their case, as well as the strength of open and collaborative effort.

When hospital leadership repeatedly cuts costs to maximize shareholder wealth, a hospital may no longer be safe. While the hospital company shareholders may receive a higher return on their investment and its leadership may make more money, complicit physicians may be endangering their patients and no longer complying with their professional oath.

Conduct your entire cross examination of the defendant’s expert as a sharply directed, controlled cross examination. At the outset have their expert admit that she is prepared to give her full and final opinions at the deposition today. Use both constructive and destructive cross. Do not permit their expert to explain or elaborate until the end of the deposition, until after you’ve asked all your questions and gotten all your expert concessions.

When Mark Twain wrote “I didn't have time to write a short letter, so I wrote a long one instead,” I suspect he was letting us know that saying what you want to say with less words requires more work. I agree. It’s more powerful too. The last thing you want to do is water down your powerful, descriptive words that now make up the fabric of your case.

Once amassed, your power must be hyper-focused. Sunzi writes of “The strike of a hawk at the killing snap.” Thoroughly prepared to unleash her power, the hawk is hyper-focused, fast and lethal. With a commanding view chosen for scanning surrounding terrain, telescope-like vision, the hawk plunges steeply downward, wings partially closed at speeds that can exceed 120 mph, all 4 talons fully extended, on contact the talons of her contracting foot driven into the body of her prey.