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

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.

EDIT: The Iowa Supreme Court reversed the Court of Appeals and allowed the verdict to stand. I disagree, but I see their logic. The opinion is here. 

(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).

I Relied on TrialPad for Ipad in a Medical Malpractice Trial… Here’s What Happened

For years I’ve used Trial Director for big cases, and simple things like blowups on posterboard for small cases. (Why posterboard? There are never any “technical” glitches, never a difficulty finding an outlet in a 100 year old courtroom, etc with posterboard).

This year I decided to switch it up. I bought an Ipad, and downloaded TrialPad for my trial presentation. It’s a $90 app, which made me swallow hard, but then I remembered the price of Trial Director, and I figured I’d give it a shot.

My plan was to try it out with a smallish dog bite case I was going to try in Iowa. That case settled the week before trial.

“Screw it” I said (or at least thought)… “I’m going to use it for this med mal.”

Of course, I started learning the software well in advance, so I’d have time to fall back to Trial Director if it didn’t work out.

It worked out.

Here’s what TrialPad was able to do:

• Put exhibits/depositions up on the screen
• Callout/highlight portions of exhibits
• Use the laser pointer tool like, well, a laser pointer
• Hold or freeze on one exhibit while I search for another

I did not use TrialPad for video depositions, although that feature is available. Why not?

1. Too much potential for something to go wrong. The courtroom had a DVD player wired into the system. Why add another element (the Ipad) that could go wrong?
2. Hassle of uploading the file. I’d have to take it off of the DVD, put it on the computer, put it on dropbox (assuming I even have that much dropbox storage available), and download it from dropbox onto the Ipad. Pain in the ass.

As usual, there were bells and whistles on TrialPad I don’t even know about, just like with Trial Director. Everything I described is typically all I would do with Trial Director as well.

As it was, I survived five days of a medical malpractice trial using only an Ipad for trial presentation.

PROS of TRIALPAD:

1. Cost

2. Space-saving.

TrialPad saved me a lot of space at counsel table. With Trial Director, I would typically have a laptop, scanner, big book of medical records/trial exhibits, and my notebook/pen. With TrialPad, I have my Ipad, and my notebook/pen.

CONS of TRIALPAD

1. The highlighter and callout functions aren’t as precise as I’d like. If you want to call out or highlight a passage that begins in the middle of the page and goes on to the next sentence, you have to include more unnecessary stuff than you would in Trial Director. The highlight function draws a yellow box, as opposed to working like an actual highlighter. It’s still readable, but not precise.

All in all – I will definitely use TrialPad again!!

I also used a website/app called Prezi for opening and closing. It allows you to create neat, interactive infographics that are usually more interesting and fancy looking than the typical powerpoint. It took a little getting used to, but really made for a nice presentation, and I will definitely use Prezi again.

In speaking with jurors afterwards, they were impressed with our use of technology. My case? Maybe not so much. On to the next one.

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

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)