Category Archives: Trial Practice

Juror Collapses in Med Mal Trial – Defendant Doctor saves her. What happens next?

This is one of the most common war stories you hear in the medical malpractice world – someone in the courtroom collapses during a medical malpractice trial, and the defendant doctor runs in to render aid and save the day.

Everyone claims to know someone this has happened to. It’s the Eddie Murphy in the elevator of lawyer stories.

Here’s one time it actually happened. 

Bottom line is that the District Court allowed everyone involved to compose themselves over the lunch hour, polled the jury, and when the jury said they could still be fair and impartial, refused the Plaintiff’s request for a mistrial. The Court of Appeals reversed.

I tend to agree with the Court of Appeals. The bigger key is that if this happens to you, there are some citations in the opinion with other cases – so remember that if you need a quick brief on the issue.

(Howard Zimmerle is a personal injury and medical malpractice lawyer in Rock Island, Illinois, practicing in Iowa and Illinois. He can be reached at 309-794-1660 or at hzimmerle [at] mjwlaw.com).

Leave a comment

Filed under Iowa Case Law, Juries, Medical Malpractice, Trial Practice

Stephen King Tells You How to Start an Opening Statement

This is what happened.

If you’re the type of person who reads legal blogs and trial advocacy books to learn how to give a good opening statement, you know you have to grab the jury’s attention. None of this “Good morning ladies and gentlemen. What I’m about to tell you is not evidence. It’s like a roadmap that I think will help you blah, blah, blah” crap. Grab the jury. Lead them where you want them to go.

I’ve always been a big proponent of the Keenan/Ball (mostly Ball) opening statement:

Good morning.

A driver is required to stop at stop signs (or whatever).

If the driver does not, and as a result hurts someone, the driver is responsible for the harm.

Now let me tell you the story of what happened in this case.

It’s clear. It’s succinct. It tells the jury what to look for without telling them how to think. It might not be the best start to a novel – but that’s not what we’re trying to do. Or is it?

Consider this article from the Atlantic where Stephen King discusses his favorite opening lines from books.  Say what you will about Stephen King, but he knows writing, he knows what’s popular, and he knows how to grab someone’s attention. His favorite opening line?

This is what happened.

For me, this has always been the quintessential opening line. It’s flat and clean as an affidavit. It establishes just what kind of speaker we’re dealing with: someone willing to say, I will tell you the truth. I’ll tell you the facts. I’ll cut through the bullshit and show you exactly what happened. It suggests that there’s an important story here, too, in a way that says to the reader: and you want to know.

A line like “This is what happened,” doesn’t actually say anything–there’s zero action or context — but it doesn’t matter. It’s a voice, and an invitation, that’s very difficult for me to refuse. It’s like finding a good friend who has valuable information to share. Here’s somebody, it says, who can provide entertainment, an escape, and maybe even a way of looking at the world that will open your eyes.

That’s exactly what we want to do with our opening statments, right? I mean… really exactly.

“This is what happened” is so close to “Now let me tell you the story of what happened in this case” but yet so different. David Ball makes some good points about the use of the word “story” – we’re familiar with stories, we have learned to listen to them since we were little kids, etc. I’ve always bristled a little at it because “stories” aren’t always true. I read stories to my three year old daughter every day – and none of them are true. Stories are what your drunk uncle bores you with – where everything is exaggerated to make himself look more interesting.

I don’t tell stories in opening. I tell the jury what happened.

Of course, there is a story to it. There’s a narrative about how someone broke the rules, did something that put people in danger, hurt someone, the victim struggled and got better (or not) and the victim’s life was changed, etc. There’s a method to telling that story too, but that’s for another day.

(Howard Zimmerle is a trial lawyer from Rock Island, Illinois. He practices personal injury and medical malpractice law in the Quad Cities area, including surrounding areas of Iowa and Illinois. He can be reached at 309-794-1660 or hzimmerle [at] mjwlaw.com)

Leave a comment

Filed under Juries, Trial Practice

Did He Really Tweet that? Careful With Social Media Evidence.

I don’t usually blog about politics or sports, but first I wanted to bring up a couple of things I found extremely newsworthy on twitter…

 

Fake barack tweet

 

Pretty sweet, huh? Didn’t even see that in the mainstream media, did you?

fake lebron tweet

 

I guess the end of the Heat’s huge win streak really took a toll on LeBron, eh?

Of course, that is only if either one of these tweets were real – which they aren’t (duh).

There’s a website that has been making the news lately called Lemmetweetthatforyou. It allows anyone to make a fake tweet under anyone else’s real twitter username. Of course, followers of President Obama and LeBron didn’t see my fake tweets, but these things can spread virally as they did recently with Heisman winner Johnny Football.

Now where does that come in for you lawyers? Obviously I know none of you are going to use this to make up fake tweets for parties in your cases “@johnnydefendant “boy, nothing better than drinking, driving, and running red lights!”. But don’t think that it can’t happen to your client. Don’t get duped by, say, your client bringing in fake social media stuff like this that they might have made in the bizarre hope that it would help their case. And if something like this happens to your client, make sure you understand it and can explain it.

Of course – and I don’t recommend this – this allows anyone to argue against any sort of twitter evidence… kinda like when R. Kelly’s lawyers used the “Little Man defense” to argue that technology has gotten to the point where someone can edit a video to put someone else’s head on someone else’s body, so therefore that sex tape wasn’t mine.

(Howard Zimmerle is a lawyer from the Quad Cities. He can be reached at 309-794-1660 or hzimmerle [at] mjwlaw.com. His twitter handle is @HowardZimmerle).

1 Comment

Filed under Traps, Trial Practice