Presentation on theme: "Thomas M. Rockwell Rockwell & Kaufman, L.L.C."— Presentation transcript:
Thomas M. Rockwell Rockwell & Kaufman, L.L.C.
“The oldest and strongest emotion of mankind is fear.” -H.P. Lovercraft
Medical Malpractice Commercial vehicles Products liability Premises liability General torts
“This case has heat!” Instinct as to jury appeal Some stereotypes work Different ◦Based on direct research ◦Focused approach ◦Detailed ◦Numerous tools developed
David Ball & Don Keenan ◦Direct psychological approach ◦Jury research Rifle shot strategy to appeal to base instincts Reptile brain = primitive survival instincts Focus on danger and safety
“When the Reptile sees a survival danger, even a small one, she protects her genes by impelling the juror to protect himself and the community.” - Reptile: The 2009 Manual of The Plaintiff’s Revolution, p. 17.
Not simply an appeal to emotion Strategy to use fear for juror to find safety Justice = community safety Large verdicts = safety By product is feeling of safety and well- being
Safety Rules Policies Order of society Expanding case beyond facts Ultimately make the case about the jurors
Rules determine safety Rules keep the community and jurors safe Rule concept is not only learned but intuitive Best rules are simple and clear Failure to follow rules causes danger / injury
Umbrella rule ◦Foundational rule ◦“A (medical provider) is not allowed to needlessly endanger the public.” Specific rules ◦Each violation supports umbrella rule ◦Common sense – rules should be followed Even basic rules can be problematic ◦Charting ◦Differential diagnoses
JCAHO Medicare Medicaid Polices & procedures Licensing & credentialing State regulatory boards COMMON SENSE
Discovery ◦Appears irrelevant ◦Expansive ◦Other acts or omissions ◦Policies ◦Inner working of institution
Depositions ◦General rules ”…needlessly endanger…” ◦Specific rules Policies Regulations Best practices ◦Hypothetical questions Beyond facts of case Sticky web
Trial ◦Opening statement Start with general rules “Every care provider should not needlessly put the patient at risk.” Incorporate umbrella rule to specific rule “Every care provider should not needlessly endanger patients by (insert specific rule)”.
Trial ◦Witnesses Experts – general rules and common sense Fact – general rules and hypocrisy ◦Closing Essentially “Golden Rule” argument in disguise “Without full compensation no one is safe.” Dangers shown in the case effect the community and thus the jurors Quotes and pontification
Oden v. Springhill Memorial Hospital ◦Mobile County, Alabama ◦Following coronary bypass surgery, patient coded. Nursing staff delayed calling physician while responding to the code. Patient died. ◦Plaintiff focused on issues with electronic records and alleged they were altered. ◦Plaintiff successfully argued that a “bad” nurse caused the death as a result of improper training and supervision. ◦$15 million verdict
Douglas v. Heartland, HCR ManorCare ◦Kanawha County, West Virginia ◦An 87 year old nursing home resident died after suffering several falls, dehydration and head trauma ◦Plaintiff focused on multiple and repeated rule violations including lack of staff ◦Plaintiff painted the picture of a wealthy company endangering helpless residents for profit motives. ◦Safety rules were ignored because of greed ◦$90.5 million verdict
Juno v. Thomas Hospital ◦Baldwin County, Alabama ◦Patient died after receiving a lethal dose of insulin. Plaintiff alleged that an outsourced transcriptionist in India made an error in copying the prescribed dose. ◦Plaintiff showed the violation of a very basic safety rule. ◦Plaintiff argued a desire to save money by outsourcing caused the death and thus safety violation. ◦$140 million verdict
Attack it where it lives ◦Restrict irrelevant or expansive discovery ◦Personalize the individual and institution ◦Motions in limine “Golden Rule” Irrelevant and prejudicial ◦Subtly de-personalize plaintiff ◦Focus on differences between plaintiff and jurors
Use its strategy against it ◦Show hypocrisy in plaintiff and counsel ◦Show danger of plaintiff’s actions ◦Reveal “true motive” – greed Choose your environment ◦Don’t focus on the general rules but facts in the case ◦It is all about the medicine ◦Make defendant’s actions clear to jurors ◦Defendant can teach the jury
Preparation, preparation, preparation ◦Know the rules ◦Know the medicine ◦Know the policies and procedures ◦Know the defendant
◦Prepare the witness Witness must know all rules and procedures Avoid hypothetical questions Sincerity Competency Personalize
Illustrate standard of care ◦Via defendant ◦Use to gain credibility ◦Professorial role ◦Circle back in closing and jury instructions Risk vs. benefit analysis ◦Medical providers use it ◦Everyone including jurors use it daily Credibility ◦Attorney ◦Defendant ◦Witness’