OPENING STATEMENT: DEMONSTRATION, DISSECTION, EXPLANATION

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1 OPENING STATEMENT: DEMONSTRATION, DISSECTION, EXPLANATION JACK E. MCGEHEE McGehee Wachsman 1225 North Loop West, Suite 810 Houston, Texas State Bar of Texas 22 ND ANNUAL ADVANCED PERSONAL INJURY LAW COURSE July 12-14, Dallas August 2-4, San Antonio August 23-25, Houston CHAPTER 11

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3 JACK E. MCGEHEE McGehee Wachsman 1225 N. Loop West, Suite 810 Houston, TX Jack is the senior partner for the Houston, Texas firm, McGEHEE WACHSMAN responsible for trying brain damage and commercial cases for individuals and large and small companies throughout the country. His trial experience includes 304 personal verdicts. He appeared on national television on ABC News, Prime Time Live which focused on the medical malpractice crisis and on ABC s 20/20 for Barbara Walter s interest in one of the firm s class action cases. Jack is licensed to practice before the United States Supreme Court and New York. Before coming to Houston, Jack was a lead medical malpractice trial attorney with the Pentagon in Washington, DC, personally responsible for a docket of over $1 billion against Army doctors and hospitals. He traveled throughout the country representing the United States in medical malpractice cases filed in Federal District Court. He is BOARD CERTIFIED by the Texas Board of Legal Specialization in Personal Injury Trial Law, the American Board of Professional Liability Attorneys as a Diplomate, and the National Board of Trial Advocacy as a Civil Trial Specialist. POSITIONS HELD IN PROFESSIONAL ORGANIZATIONS include: Past President, Texas Trial Lawyers Association; Advocate, American Board of Trial Advocates; Past President, Houston Trial Lawyers Foundation; Past President and Past Vice President, Houston Trial Lawyers' Association; Past President, Texas Medical Legal Society; Past President and Vice President, Houston Medical Legal Society; Past TTLA Executive Committee member, Membership Chair, Legislative Committee Chairman, and CLE Committee Chair; Fellow, Texas Bar Foundation; Founding Director, Houston Trial Lawyers' Foundation; American Board of Professional Liability Attorneys, Board of Governors; State Bar of Texas, Past CLE Vice Chair, PJC Committee and Personal Injury Trial Manual Committee; Trial Lawyers for Public Justice; Million-Dollar Advocates Forum; Fellow, American Bar Foundation. Former Adjunct Professor, University of Houston Law School, Houston, Texas, teaching Civil Trial Advocacy and Former Visiting Professor, Emory Law School, Atlanta, Georgia, for their Annual Trial Techniques Institute and Fellow, American Bar Foundation. Jack has written a book titled, The Plaintiff s Case: From Voir Dire to Verdict. All book proceeds have been donated to the Texas Trial Lawyers Association. He has written over 250 speeches and Publications. His Publications appear in journals such as; New England Journal of Medicine, Trial Diplomacy Journal Special Edition, and The Texas Evidence Reporter. Jack was named one of Houston s Top Lawyers in 2005 by Texas Magazine.

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5 TABLE OF CONTENTS I. INTRODUCTION... 1 A. Qualities Of A Good Opening Statement A time for FACTS or a time for PERSUASION? What it looks like... 2 a) The mechanics of opening... 2 b) Style--3 way conversation c) Persuade with detail... 2 d) Voice inflections to transfer feelings Principals of opening... 3 a) Hidden themes... 3 b) Expose their overstatements... 4 c) Form over substance... 4 d) Show AND tell during opening... 5 e) The case theme The painful process of organizing the opening... 5 B. What s Permissible And What s Not In Opening Statement... 7 C. Common Objections During Opening Statement... 7 D. Outline Of An Opening Statement... 7 E. Opening Statement Shell Engage d facts Introduce fact witnesses Case theories... 8 a) Clinical judgment vs. departure from the standard of care... 8 b) Differential diagnosis Experts Sympathy Damages and the "M" word Defenses Ending F. Example Specimens For Use In Trial Husband s lost spouse G. Example Opening Statements Medical malpractice opening statement Child death case Ad litem opening II. CONCLUSION i

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7 OPENING STATEMENT By: Jack E. McGehee I. INTRODUCTION Apart from closing argument, no other area of litigation has received the widespread scrutiny of commentators and pundits than that of opening statement. But their teachings frequently miss the point. In actuality, while the rock of the opening statement is chiseled long before the trial begins, the polish is applied moments before it is delivered. The cornerstone of opening statement is flexibility. It must change shapes after we see the enemy s attack. We should never be so cavalier to think we know how the opponent will fight. We will hear for the first time their theory against our case during voir dire. While lots of theories may have been developed during discovery, the only one that counts is the one delivered to the jury. And what s frightening to the weak hearted, sometimes the one delivered to the jury was NEVER developed during discovery. Opening statement is the first opportunity to respond to their theory of the case. And just like voir dire, the clock is ticking fast. We must sprint to capture a favorable first impression from the jury. In the minutes separating the end of voir dire and the beginning of Opening, we must readjust, re-focus, and change our approach to line up directly against the enemy s best defense. How it is done, what rules govern it, and some suggestions about what it looks like is the subject of this chapter. A. Qualities Of A Good Opening Statement 1. A time for FACTS or a time for PERSUASION? We learned in law school that the opening statement is not argument and should be employed to provide the jury with a road map or summary of the evidence we plan to adduce during the trial. This may have been true back when our professors studied the profession of persuasion, but this approach has no place in today's contested environs. If we don t seize this opportunity to persuade, we will lose the initiative and not fully exploit this critical stage of the process. Jurors make up their minds very quickly. We must explode with our best arguments and positions at the outset and press the attack to move the jury to accept and embrace our claim or defense. Opening statement is a misnomer. It's not "the" or "an" OPENING, it is the Second Opening and more importantly, it's a rebuttal to their voir dire. A lot has been written on the distinction. Suffice it to say that if we don't use voir dire to open, we ve wasted a valuable opportunity. They will. The first to tell the story gets the edge. We should voir dire with the story line of our case. In this first opening, we should tell the story for three or four minutes to set the stage for the crucial give and take of the jury selection (or more accurately, the juror exclusion) process. Unlike opening statement, it is voir dire when the jury is introduced to our case... Before we begin asking questions to see if you should sit in judgment in this case, I'd like to briefly tell you about our case. For the next 4 minutes we'll share with you why we are here today. This is little Tiffany. On May 8, 1992, she was sitting up unassisted, smiling, laughing, forming words, and looking to take her first steps. Her parents shared the hopes and dreams of all of us who have experienced the joy of their first child, born healthy, vibrant and full of life. The next day Tiffany began breathing fast. She developed numerous symptoms of pneumonia and was taken to the emergency room where she was seen three times by the defendant over a period of four days. On each hospital presentation, Tiffany's condition had worsened, her symptoms more acute, yet the defendant failed to take the necessary medical action to order a chest X-ray, initiate antibiotic therapy and provide breathing support. On May 11, Tiffany's frail lungs were so loaded with the ravages of pneumonia that she went into what the doctors call respiratory distress. Her brain was deprived of life sustaining oxygen for so long that she suffered profound and irreversible brain damage. Unlike May 8, 1992, today, she cannot sit up unassisted, she hasn't smiled in 2 years, she doesn't laugh or form words, and she has forgotten about her first steps. The hopes and dreams of this baby and her young parents were shattered. They come to you for help. So when we finally stand up for opening statement, we are not forced to spend time acquainting the jury with our side of the case. We have told the story first and now we are free to fill in the blanks and begin concentrating on responding head on to their defenses. McGehee -1

8 2. What it looks like a) The mechanics of opening No one is able to fully describe the properties of a perfect opening statement. While several have tried, their ideas are worth learning... Be absolutely truthful. Never overstate anything. Be yourself. Do not read. Use simple and positive language. Move around the courtroom for emphasis. Control the courtroom. Use visuals and exhibits. Use present tense. Consider telling the story from point of view of bad guy, not good guy. Otherwise, the jury will think of thousands of excuses for the behavior. Don t repeat the evidence will show... Fully explain every negative in the case. Diffuse opponent s strength. Make the client a human. Communicate approachability. Repeat the theme using sound bites... This is a case about cheating. This is a case about broken promises. This is a case about police brutality. Revenge. That's what this case is all about. This case is about being responsible for your own conduct. Make early eye contact--even before we speak. End the story with the filing of a lawsuit and the jury s purpose today. faced with a lifetime of medical bills, they had no recourse by to right the wrong. The number one rule for style is: BE YOURSELF. b) Style--3 way conversation. The perfect opening statement sounds just like we sound when we talk informally to a close friend about a cause that may change our life. It s not a style that we learn from the great trial lawyers. Certainly, it s not learned in a book. It s our own and no one can take it from us. We should talk to the jurors as our friends and set up the mood for the remainder of the trial. The mood should make the jurors feel as though they are the third party in a three-way conversation while we ask questions of a witness. We set up this mood during opening. We should tell the story from our heart. And we should treat the jury like they are participating in our conversations to follow. c) Persuade with detail Delivering an emotional opening statement and captivating everyone's attention doesn't mean the delivery must contain argument, or be loud and animated. Sure, emotion is generated through stories and analogies. But emotion is also available to us during opening. We create emotion during opening with DETAIL. Simple detail makes the jury see the story. They live it. They feel it. The baby presented, the doctor placed the forceps around Timmy's head, squeezed them tight, adjusted his grip and pulled and twisted until he met resistance. Timmy stopped, his shoulder became stuck on his mother's pelvic bone. But Doctor defendant continued to twist Timmy's head. Timmy's 1st brachial plexus nerve snapped away from his spinal column. When Doctor defendant again adjusted the steel forceps, the heel of the instrument pressed down on Timmy's left eye socket, pushing his eye into the forceps, destroying any hopes of future vision. To overcome resistance, the doctor pulled harder. Timmy's C1 and C2 cervical vertebrae cracked, breaking Timmy's neck in 2 places. Doctor defendant reversed his motion and moved the broken vertebra chip across Timmy's 2d brachial plexus nerve, cutting it away from his spinal cord. There is nothing loud, or animated about these words. What made them emotional was their graphic detail. Sometimes, the greater the detail, the greater the concentration level of the jury. Again, for emotion, use detail, not flowery adjectives or flamboyance... McGehee -2

9 The evidence will show that when the defendant approached the intersection, he claims he never saw little Timmy in the street. When his car came within 6 inches of Timmy's waste he claims he never saw little Timmy in the street. When his car first made contact with Timmy's left femur he claims he never saw little Timmy in the street. When his car cracked Timmy's femur and made contact with his hip he claims he never saw little Timmy in the street. When his car broke his hip and slammed his head against his hood he claims he never saw little Timmy in the street. When his head made a 3/4-inch dent in his hood, less than 3 feet from the defendant's eyes he claims he never saw little Timmy in the street. When his car catapulted Timmy's body 50 feet through the air he claims he never saw little Timmy in the street. When Timmy lay on the ground with a cracked skull in a pool of over 2 quarts of blood he claims he never saw little Timmy in the street. Only after he got out of the car, did the defendant finally see what he had done. AT LEAST THAT'S WHAT HE WANTS YOU TO BELIEVE. ONLY THEN DID HE HEAR TIMMY MOANING. WE WILL TELL YOU WHAT HE WAS MOANING IN FINAL ARGUMENT. "DON'T LET THIS HAPPEN AGAIN." d) Voice inflections to transfer feelings The manner in which we talk influences what we say. If we talk in a monotone, low-pitched voice, never changing pace or intonation, we will lose any listener fast. But if we talk the same way we talk to close friends, using variations in pitch, pace and intonations, we will appear more like our true self. A few rules might make us aware of the effect of voice inflections used to transfer feelings... When we talk about the injury, use... slower pace lower tone extremes in vocal patterns lower the eyes slower body movements slower breathing patterns and... dramatic pauses When we talk about the REASONS for the injury, we re angry and we should use... faster rate higher pitch louder volume direct eye contact upper body gestures decisive movements and... dramatic pauses When we talk about factual information, we keep eyes level use even breathing use moderate rate use no extreme tones and use NO dramatic pauses 3. Principals of opening a) Hidden themes Hidden themes are more persuasive than those we blurt out. During the 1992 presidential elections, Bill Clinton traveled by bus across the country. His hidden theme was much more persuasive than if he stood up on a podium and blurted out I m in touch with the common American. During that same election, Ross Perot on election day communicated his hidden theme, our children need me, by having hundreds of year old kids holding a Ross Perot for President sign across Interstate 10 at T.C. Jester Road. The impact of seeing those kids was far more persuasive than him saying the words. Hidden themes are perfect for employing the persuasive element of CURIOSITY. In an opening statement, I realized it would be futile to call a doctor cold and insensitive. Instead, during opening statement curiosity was planted about a hidden theme... McGehee -3

10 We are going to see what this man s made of when we hear what he told the family when he came out of the operating room. The very first words he said to the family will give us an insight as to what kind of guy he is. Listen to the very first words he says to the family after he comes out of the operating room. I m not going to tell you what they are. Let s let him tell us. You could hear a pin drop several days later when the defendant was on the stand and was asked... Now tell us doctor, after you came out of the operating room, the family was in the waiting room, weren t they? And you said something to them as a group, didn t you? Tell us doctor, what was the very first thing you said to the family after you came out of the operating room? And the doctor responded with the same words that were locked in from his previous deposition... Your father died and it wasn t my fault. b) Expose their overstatements Expose their overstatements made during opening or voir dire. However, if we claim an overstatement, we must deliver. Never overstate. This rule is violated every day. If the opponent engages in hyperbole, exaggeration or oversell, attack immediately. It can change the complexion of our whole case if we can expose their overstatement. Jurors enter the courtroom today with lots of preconceived negative images and ideas about lawyers. One such "preload" is that attorneys are not trustworthy. If a lawyer overstates his or her case and this is immediately exposed, the juror with embedded distrust for our vaunted profession will tune out the perpetrator for the duration of the case. Once exposed, the litigator can rarely recover. At the very end of a voir dire a very experienced defense lawyer told the jury that our standard of care expert had limited clinical experience. This overstatement changed the complexion of the case. During opening, we hammered this faux pas, reminded the jury of the statement made by the opposing counsel of "limited clinical experience" and interjected some curiosity into the process by asking rhetorically, "What did he mean by LIMITED CLINICAL EXPERIENCE? Is he telling you that Dr. Expert does not practice medicine and deliver babies?" This turnabout from opponent's voir dire and our opening was carried forward in the presentation of the evidence. Rather than calling the plaintiff first as had been our trial plan, we called the expert who was berated by opposing counsel as having limited clinical experience. Within minutes from the time counsel overstated his case, the following exchange was presented to the jury: 1st Q: Doctor, assume that the jury was just told you had limited clinical experience. When was the last time you delivered a baby? ANS: Yesterday Q: How many babies did you deliver in the past 12 months? ANS: 200 Q: How many babies did residents you supervise in your department deliver in the past 12 months? ANS: 900 Q: Doctor, I apologize for seeming upset. Now, please tell us your name. Following this exchange, there was a noticeable mood that the defense immediately lost credibility. c) Form over substance As trial lawyers we rely on our command of the language to convey our thoughts, elicit testimony, cross-examine adverse witnesses and persuade. Words are our weapon of choice and we rely on this arsenal to champion the cause of our client. But we have learned that information, impressions and observations are communicated to the jury not only through the verbal exchange, but more significantly, through our appearance, actions, movements and intonation. First impressions are absolutely critical. They begin with form over substance. Long ago we learned that control of the courtroom is an indispensable element of the power to persuade. The next time that you are near the courthouse, go into a courtroom where a case in which you have no interest nor prior knowledge and watch closely when the array of potential jurors are led into the room. They will scan the premises, look almost immediately at the parties involved and ask themselves, what have they done? Early in this McGehee -4

11 process, the individuals in the pool will look with close scrutiny to the lawyers. The jurors are watching and asking themselves, is this someone I would like to hear from? Is this someone who I can trust? Our appearance and demeanor from the moment the panelists enters the courtroom through opening will be a form of communication to these fact finders. We must be comfortable with ourselves. Clothes Pressed shirt or blouse Shoes not overly worn Running watch (smart watches, no dumb watches--no matter how proud you are of your hidden clasp, simply no obnoxious watches) Convey approachability and like-ability with your selection of clothes Exhibits hold theirs away from your body handle yours carefully Touching the client same gender--ok different gender much older or younger than you-ok little age difference, be careful, especially if client is attractive. d) Show AND tell during opening Long ago we discovered that we retain substantially more information received through visual means than oral communication. Accordingly, at this early and critical stage in the litigation process we should use visual aids. We should avoid a sustained objection by first making the judge aware of the aid before opening. A "storyboard" contains a very concise summary of the case. It provides the jury with a structured road map and can be continuously used as we call witnesses and elicit the details of the material summarized in the storyboard. Another option is using a standard chart pack to list the names of the witnesses we expect to call along with a cryptic note of the subject matter that they will address during their testimony. We should keep this material readily available and be prepared to check off each item as the testimony is developed. e) The case theme Create sound bites to describe the case theme. As trial attorneys we long for the opportunity to get to trial to champion the cause for our deserving clients. However, we often fail to recognize that those persons who will be making the decisions on the merits of our claim do not share our zeal for the litigation process nor our excitement about trial work. Jurors from the cross section of our society have lives and routines that do not include the trials and tribulations of the civil justice process. Many feel that their lives are disrupted by an institution they know or care little about. We must recognize that the majority of prospective jurors enter the courtroom with ambivalence or hostility. The case theme we select can be instrumental in getting their attention and persuading them that your side should prevail. A case theme should be repeated several times during voir dire and opening. It must be simple and easy to remember. The theme must complement the fundamental facts of the case and make sense to the average juror. The theme is the thread that will tie the case together for the jury and provide a level of comfort to the jurors that the decisions they will reach in the case are consistent with their principles of fairness. (see VOIR DIRE chapter section F. VOIR DIRE SHELL, 1. Introduction, for examples of case themes.) 4. The painful process of organizing the opening The starting point for organizing the opening statement is first outlining the closing argument. The persuasive impact is enhanced by repeating a consistent theme from voir dire, through opening and into closing. After marshaling the evidence, evaluating the witnesses and researching the law, we should be in a good position to identify our case themes and anticipate theirs. If we explain to the jury what is an opening statement, never tell them what we say is not evidence. We all know this is in fact the law, but such a disclaimer so early in the process does little to advance your claim. Further, it often provides a trigger to those jurors who enter the courtroom with strong preconceived notions against our efforts to tune out and ignore the details of our case. One method to organize our opening is to divide it into two categories: a summary of what we expect to prove and a summary of the relief sought. The summaries become the general sketch or road map of where we plan to take the jury. This includes an overview of who will testify and a concise statement of the contribution each witness will make to the development of the theme. During this initial component of the opening, admit to the jury what is in controversy. Try to focus the fight clearly so the jury McGehee -5

12 is not sidetracked on tangential issues that have little to do with whom should prevail in the proceeding. Delineate witnesses during the opening as fact or expert witnesses. As we introduce the fact witnesses, describe what we expect to be their first impression on the jury. Tell the jury what we expect his/her testimony to be in a concise manner and dispel anything concerning each fact witness that might adversely impact on the first impression they will make to the jury. Consider appearance, demeanor, speech patterns and anticipated avenues of crossexamination in the introductions. If we were not able to develop the concept of experts during voir dire, we should introduce them during opening. There is of course no consensus concerning the impact highly paid experts have on the deliberative process of the jury. Some argue that jurors resent such witnesses no matter how well credentialed because they cannot overcome the economics whereby the expert makes more in an hour than the average jurors takes home in their paycheck after a week of hard work. Others counter that jurors are open to the opinions and conclusions of such experts because they appreciate the years of education, experience and dedication that the expert endured to reach his or her position in the profession. Regardless of which argument is found most compelling, we must introduce the expert(s) to the jury and take advantage of the opportunity to bolster their credentials. One approach is to ask a rhetorical question. How can we present to you such a complex area of medicine such as respiratory syncytial virus (RSV)? What we have done is brought to this courtroom for you to see and hear, professors and clinicians from some of the best teaching institutions in medicine. Some of our experts are nationally known authors, lecturers and experts in medicine. One is affiliated with the University of Texas and another Baylor. Then provide a capsulized version of what each expert will add to the case. When summarizing what we expect to prove, a subpart will necessarily be addressing our opponent's case and exposing its weakness and, whenever possible, diffusing its strength. Consider both the evidence and the opponent. Try to steal their thunder at every opportunity to maintain the initiative. Before trial, talk to colleagues who have tried cases against the adversary to learn what phrases, canned endings or personal touches they employ during trial and select the most effective to introduce during opening. For example, if the defense lawyer constantly repeats that her client is one of those who toils at the bedside of the sick and dying" when referring to physicians whose conduct is alleged to have fallen below the prevailing standard of care which causes injury to the plaintiff. An effective way to diffuse such flagrant attempts to evoke sympathy is to confront it head-on in opening as an affront to the jury. One example under this scenario would be to advise the jury that we expect one of the first instructions at the close of the case from the presiding judge will be not to let sympathy influence your decision, then ask them to make their decision on the evidence, not on any sympathy. Then turn it around. The medical profession as a whole gets some sympathy. Some exploit that sympathy by calling those within this profession as "those who toil at the bedside of the sick and dying." The most demanding part in preparing an opening will be to communicate to the jury the relief sought. In civil cases the plaintiff will be asking for money damages. The jurors have all heard misstatements and exaggerations about lawsuit abuse, tort reform, the insurance crisis and threats to the continued availability of goods and services at competitive levels because of the frequency and expense of litigation in America. These areas are best addressed during voir dire and we must solicit their opinions and evaluate their mind-sets before the jury is selected. But this education process must continue at every opportunity so that their detrimental bias and prejudices will be neutralized and the jurors constantly reminded that they are to make their decision based on the competent evidence adduced at trial and the law as the presiding judge instructs. When we ask for damages be cautious not to appear greedy, yet we shouldn t apologize for needing money to make the patient whole again. Say it once, with conviction and authority. One effective introduction to this sensitive area is to emphasize that we cannot bring back the life lost or repair a brain that has been permanently damaged. Suggest to the jury that, McGehee -6

13 We would like to ask you to give Timmy back a normal life. Of course, that's impossible. You understand there will be no witness getting on the stand and saying that Timmy is entitled to an exact total amount of money in damages, which is what we will ask for in our closing argument. There is no computer program yet devised that can calculate damages. Only people can feel pain and hurt. Computers do not feel. Computers do not hope and computers do not dream. At this point one way to educate the jury on the relief sought is to detail the elements of damages. Advise the jury that they will be asked to determine how much money it will cost for our client's future medical care needs, loss of wage earning capacity, physical pain and mental anguish, disfigurement and physical impairment. Take one of these elements and outline the components and explain to the jury how the evidence will assist them in arriving at a conclusion. Again by way of example... One element of damages is Future Medical Care. It's like the negligent driver who hit my car and caused a cut on my head, I think you all would agree I've been damaged at least by the cost of stitches and gauze required to patch up my head? Even if the cost of stitches and gauze was a very large amount of money? I'm still entitled to that cost. The reason I'm telling you this is because Timmy's future costs for medical care, physical therapy and nursing care are high. He needs care for the rest of his life. We've broken down his needs dollar for dollar--the total is in the millions of dollars. And we will show that if Timmy uses all the medical care that our experts will prescribe, that there will be no money left at the end of Timmy's life. This high amount of money buys only Timmy's reasonable and necessary medical expenses. Listen closely to our economist who will explain these figures in detail. Then listen for their economist, or better yet, let's see if they even call an economist. nature of the case what we expect to prove relief sought Perhaps we will be permitted to discuss a few other topics... respond to opposing counsel s voir dire, expose overstatements made by opposing counsel, and air all our dirty laundry. C. Common Objections During Opening Statement The most common objections include... Argumentative, prejudicial and/or inflammatory Instructing jurors on the law Covering facts which will not be admissible Misstating the law Stating personal belief on the merits of this case The single most frequent objection is arguing the case. Whenever such an objection is sustained against us, we might immediately follow with the words the evidence will show... Saying those words will give us time to think about how to react, and it will usually cure an objection about arguing. D. Outline Of An Opening Statement The following elements might be discussed in each opening statement... Engage (concise statement of theme) 2d Facts (after voir dire) w/ each allegation of negligence Introduce fact witnesses Case issues w/ all weaknesses Case theories (Judgment v. Departure; differential diagnosis, etc.) Introduce experts and subject matter Sympathy or waive the flag Damages and the "M" word (All relief sought) Defenses Canned ending The purpose of the opening is to persuade the jury that a justifiable recovery is not excessive. B. What s Permissible And What s Not In Opening Statement Typically state rules permit us to discuss three topics in opening statement... McGehee -7

14 E. Opening Statement Shell 1. Engage My congratulations or condolences on becoming JURORS. I think you will come away from this experience believing that our system is good and effective. Now it's time for me to get very serious. We are here today because... [concisely state case theme] Another approach... May it please the court, [and if your case involves a big corporation, like a company that owns the hospital] Counsel for AMI California representative for AMI Chairman of the board for AMI [and if o/c blasted you personally during voir dire] my friend and counsel for the defendant, Mr. Billy Jo Bob Johnson. While closing in... This case is about a little girl who became brain damaged after gasping for air for 1 1/2 days while 3 doctors either ignored her or treated her for a sore throat. We will show that a reasonable doctor would have seen little Tanya breathing fast and known that her heart might be failing. We will show how a failing heart can and did cause brain damage. 2. 2d facts Our evidence will show: *[recite a version of the facts that compliments the facts discussed during voir dire.] Mrs. MOM will say *[she heard the doctors say her daughter was terminally ill], but that's not the worst thing she's ever heard. She will say *[she heard her daughter s last words], but that s not the worst thing she s ever heard. You know what's the worst thing she ever heard? When she learned that her daughter s death was PREVENTABLE. 3. Introduce fact witnesses We should show the jury that we are concerned about our friend, and that they should be as concerned. I was thinking when we were picking the jury that we have several professions represented: a secretary, administrator, engineer, decorator... Although we're all neighbors here in Harris County, it's surprising how little we actually know about each others' job. I thought in these days of automation that all the hard work in farming was over. So I went out and spent a day on John's farm. I was shocked at how much he needs a strong back. We should assist in making the first impression for our witnesses. We should dispel anything that might have an adverse effect on their first impression. You'll meet Tom Smith, a big ole fellow who speaks with a slight imperfection, He'll be wearing blue jeans b/c he doesn't own a fancy suit, but you'll see he's as honest as the day is long. He'll tell you what the doctor said before they discharged little Timmy. Include in the recitation of the facts, everything that supports each allegation of negligence. 4. Case theories a) Clinical judgment vs. departure from the standard of care We wouldn't be here if this doctor made a wrong clinical judgment. You will hear lots of discussion about how the doctor must make his decision on what he sees and feels. This case is not about clinical judgment, it's about basic medical school rules that weren't followed. These minimum basic rules are called standards of care. And when you depart from these standards, you are negligent. We will show the basic medical care that the citizens of this town deserve and have a right to expect. McGehee -8

15 b) Differential diagnosis We will show that the most important function of an ER doctor is to identify life threatening illnesses. We will show that when a doctor examines a patient, he is required to follow certain rules. He lists the clues, by writing down the symptoms, taking a history and conducting a Physical Exam. Then, like a detective, he makes a list of possible diagnoses, with the most serious on top. Then he proceeds to "rule out" the diagnoses with tests. What you re left with is the final diagnosis. You will hear this list referred to as "differential diagnoses." For instance, the differential diagnosis for a lump on the breast is cancer. And a doctor shouldn't conclude it s a benign cyst until he rules out cancer. And a doctor shouldn't conclude a child with symptoms of croup has the virus until he rules out epiglottis, a life threatening disease. And a doctor shouldn't conclude that swollen glands under the ears is a head cold until he rules out Hodgkin s disease. And a doctor shouldn't conclude a persistent head ache is due to tension until he rules out a brain tumor. And this doctor shouldn't have concluded that rapid breathing in a child is a sore throat until he rules out congestive heart failure. 5. Experts And how can we best teach you these medical school rules? We brought you the professors from the best teaching institutions in the US. Some of our experts are nationally known authors, lectures and experts in medicine. One is affiliated with University of Massachusetts, one with the University of Texas Medical Branch, one with LSU Medical School, and one with Texas A & M. They will tell you how a reasonable doctor would have avoided mom's pelvis, and would have delivered abdominally. They will tell you all the rules that were broken and what a reasonable doctor would have done. Another approach for experts... You will hear from Dr. Expert:, a nationally known author, teacher, and expert in this procedure, that had Dr. Defendant diagnosed cancer on time, the plaintiff would still be alive today. He s not a BACK YARD expert. You will hear how difficult it is for patients to find OBJECTIVE experts to review cases. We have objective experts, not someone from her own backyard. Regarding their experts: I suspect they will say... everything this defendant did was OK, they will call plaintiff s injury a complication, they will rubber stamp everything the defendant did. I suspect they will all stick together. For economists... We have an economics professor who will come and compute exactly what Timmy can expect to lose from loss of wage earning capacity and what will be required to pay for future medical care. We expect that his calculations will not be challenged with real evidence. Oh, they will be challenged, but only with lawyer talk. And you know what that's worth. Listen to what THEIR economist says, or better yet, let's see if they even have one. The following might be a stretch, but I ve always wanted to try it... Since the economist's numbers are so important, we will offer a challenge. We are supposed to exchange witness lists 30 days before trial, and these lawyers never listed an economist, that's how I know our calculations will not be challenged with real evidence. I challenge him to find one single economist who disagrees with ours. If he can, I will waive the 30 day period and invite him to come in and talk to y'all. Now I'm curious to see if these lawyers can come up with real evidence, more than their lawyer talk. Here's an alternative to the ECONOMIST's discussion above. McGehee -9

16 If I did not think I had proven that the doctor's negligence caused Timmy's injuries, I could not in good faith ask for damages. Plaintiff would like to ask you give Timmy back a normal life. Of course, that's impossible. You understand there will be no witness getting on the stand and saying the plaintiff is entitled to an exact total amount of money in damages, which is what we will ask for in our closing argument. Computers can't calculate all Timmy's damages. Computers don't hurt. Computers do not feel. Computers do not hope and Computers do not dream. We bring to you an economist who is trained to computed future cash needs according to assumptions... [repeat from above] 6. Sympathy Recall that during voir dire we discussed sympathy. We said something like... The first instruction given by the judge will be not to let sympathy influence your decision. It's first because it's most important. You must make you decision on the evidence, not on any sympathy. Now we are suing individuals and an organization. The law gives us a remedy no matter how much you may like this organization and these people. That's not what were here for. The medical profession as a whole gets some sympathy. Some exploit that sympathy by calling the profession "those who toil at the bedside of the sick and dying." Will you promise not to let sympathy enter into your decision? Next, the defense lawyer certainly commented about sympathy, since we brought it up during our voir dire. If the bait is taken, the door is open to further comment on sympathy during opening statement. You heard the opposing counsel jump on the band wagon and try to relate the sympathy to our entire case. That's QUICK THINKING. Well let's set the record straight, we're not here for sympathy. Timmy s mom got sympathy at the funeral, from friends, at work, school, church, they got enough sympathy to last them 10 lifetimes. We're not here for sympathy, we're here for justice. Sympathy is degrading and never adequate. He doesn t want sympathy, he wants justice. Forget sympathy, but don t forget empathy. No one will ever tell you to forget what you've learned in becoming a wise adult, no one will ever tell you to forget EMPATHY. Sympathy means "you hurt and I hurt with you." Empathy means "you hurt and I understand." You don t see Timmy in this court room. Because if you did, you would hurt for him. We don t want you to hurt for his pain, we want you to understand his pain. I pray that you will empathize with little Timmy. 7. Damages and the "M" word We must discuss damages during opening. If our case is big, and we expect to ask for over a million dollars in closing, we should step up to the plate and say so before the defense makes us look greedy. We should not overuse the word million. Use the word ONCE. It stings our ears. If we walk by a group of people talking and hear "million dollars," our attention is immediately captured. If you hear someone say it over and over, how do you feel? We shouldn t appear greedy, yet we shouldn t apologize for needing money to make the patient whole again. Say it once, with conviction and authority. You will be asked to determine how much money should be reimbursed for Timmy's past medical care needs: loss of wage earning capacity, physical pain and mental anguish, disfigurement, physical impairment. Another element is Future Medical Care: McGehee -10

17 You heard in voir dire my example about a man who crashes his head into the windshield. We all agreed that a defendant would be required to pay for the cost of stitches and gauze. And tomorrow if the dressing needs changed, he should again be required to pay for the new gauze. The reason I asked that was because the cost of Timmy's stitches and gauze is horrendous. The cost of his future medical care will be in the MILLIONS of dollars. And we have a Life Care Plan that will itemize every penny. We expect the defense to cut the cost of future medical care by saying Timmy may die early. Our expert will say only God can determine when Timmy will die, and that Timmy could outlive the statistics. Everyone will agree that with no medical care, he will die. We will ask you to assume Timmy lives a normal life and not sentence him to death by only paying for a few years of future medical care. And we will show that if Timmy uses all the medical care that our experts will prescribe, that there will be no money left at the end of Timmy's life. This exorbitant amount of money buys only Timmy's reasonable and necessary medical expenses. Listen closely to our economist who will explain these figures in detail. Then listen for their economist, or better yet, let's see if they even call an economist. Continue discussing the other elements of damages supported by the evidence. 8. Defenses Of course, these lawyers are not going to come in here and admit they were wrong. No, they were paid to defend this case. They are going to fight us every inch of the way. I'm sure they will have experts who will go through all the regulations and try to show how they complied. But our evidence will show that none of their excuses can explain how Harry Torres was: "crushed in a car accident" according to the ER record. They may try to profit: They may say that they hurt her so BAD that there is no need to pay for a full lifetime of medical care. They hurt her so bad she is going to die early. These are defenses which they are entitled to make. 9. Ending Listen to the doctors and not only think about what they say, but watch how they say it. Listen if they answer my questions with other questions, and listen to whether they answer my questions at all. In short WATCH OUT FOR THE WOOL. Don t let them pull it over your eyes. Listen to the doctors and not only think about what they say, but listen for hidden agendas, any interests they might have with this hospital. Listen for whether the experts have any interests in this case that might not be apparent. Today Lorena Anzaldua is not the happy baby she once was. She no longer has a good life ahead of her. She no longer has a bright future. Today her future does not include growing up like a normal child, smiling, talking, crawling, walking, running, and playing outdoors with friends. Today she comes to you for help. Today we will test the system. Because this is a unique case, not a case where someone seeks a windfall, but a case where Plaintiff merely wants back what they took. And after today, I think the system will be improved, strengthened, made better. Because today, On * 1996 in this courtroom, the system works. Plaintiff is counting on it. F. Example Specimens For Use In Trial 1. Husband s lost spouse For a husband who lost a wife, we can inject emotion into an opening by simply reciting minor details about how the loss affects his life today... McGehee -11

18 I nearly forgot, we ll call Jeff to testify about his life today... He won't moan and groan about how awful life is. He'll tell you he still goes to movies, he still laughs, he still goes to parties, he still works hard. He won't tell you he hurts. He WILL tell you that...there's always something lingering in the back of his mind....he sometimes finds himself over on Chestnut Street...when he's on Chestnut street he slows down, usually rolls down the window, leans over, looks out his right window, so he can get a good look at St. Luke s Church, where he and Catherine were married on April 10, 1981 (8 years ago) in front of 50 friends and relatives. He sees one of those people every day. One old man, a senile old man, who attended the wedding, Jebb Griffin, even after the wedding, kept asking when was he going to marry Katherine. Now, it seems every time he sees Jeff, he asks, how's that bride of yours? Jeff just says "fine" and walks on. He WILL tell you that...when he's over there by the church, even though it's out of his way, that he always seems to turn onto Oak Street, that his car seems to instinctively slow down until he nearly coasts up to the top of the hill, right beside Oak Ridge Cemetery. On a clear day, he can see the top of her tomb stone. He can't read it, but he knows what it says. He'll tell you how they both decided what to write on their tomb stones. Something that showed everyone they still love each other. I won't tell you what it is. He really wants you to know. He WILL tell you that...sometimes, sometimes when he's not thinking clearly, he will tell you how he finds himself rushing home, to 718 Flowers Drive, and actually expecting to see a light on in Catherine's old study. It's never actually been on since she died. But you can't prove it by him....he WON'T TELL YOU IT HURTS. But we'll see, it does. G. Example Opening Statements 1. Medical malpractice opening statement We are here today because Dr. Defendant did not follow the standard of care. She didn't treat Lorena like a reasonable doctor would have. She violated the most basic medical principles. She IGNORED HER PATIENT. Lorena got lost in the shuffle. Then she allowed someone who is not even an ER doctor to botch up placing the tube down her throat. And she never intervened. She let Lorena continue with no heart rate, not breathing, no blood pressure. And Dr. 2d Defendant couldn't have done much worse. He is a pediatrician, he's supposed to know how to intubate. It's not so bad that he put it down the wrong passageway, but he did nothing about it. Lorena never responded to his intubation, I wonder why? FACTS On December 23, 1989 little Lorena Anzaldua was a happy baby. She had a good life ahead of her. She had a mommy and daddy who wanted her to come into this world, who loved her and who loved each other. She was looking forward to a bright future. Her future included growing up like a normal child, smiling, talking, crawling, walking, running, and playing outdoors with friends. 24th The next day she developed a congestion. She appeared slightly ill to her mother. She couldn't breath properly, she had a strange drainage coming from her nose, she vomited and she only fed from 1 breast rather than the normal 2, so she had slight eating difficulty. Now we know Lorena was developing a touch of pneumonia. The technical term is RSV, respiratory syncytial virus. It's the most common type of pneumonia for little babies. As any good mother would do, Alberta arranged for Freddy to baby-sit and she took her baby to the hospital. The hospital where her baby was delivered. The hospital she trusted. McGehee -12

19 4:25 She went in and was processed in slowly, but not too slowly. The nurse came and looked at Lorena, then the doctor came. Meanwhile, Lorena is about the same. 30 min. CXR Then an eternity passed. It may have been about 30 min. Meanwhile, Lorena is getting worse. She's having more difficulty breathing. nose starting to flare breathing faster muscles to fight to get air into her lungs. making noise with each breath. Where's Dr. Defendant? Finally someone came for x rays. They came and left. Still Alberta trusts this hospital. Lorena is getting worse. 10 min. BLOOD Another eternity passed. It may have been 10 minutes. Where's Dr. Defendant? Finally someone came to take some blood. They came and left. Still Alberta trusts this hospital. Lorena is getting worse. 10 min. Phone Call 30 min. ADMIT Another eternity passed. It may have been 30 minutes. Still Alberta trusts the doctor. Lorena is still getting worse. Where's Dr. Defendant? I hear her--dr. Defendant is on the phone. Admit for pneumonia! Thank God someone is finally going to help. Dr. Defendant comes and says call your husband. It's 6:25. But she doesn't look at Lorena. Lorena is getting worse. A nurse comes to start an IV. BAM--Lorena stops breathing!! She's blue!! Emergency!! They take her to the trauma room. CODE blue!! ALARM!! Loud speaker. CODE BLUE.! Alberta's crying. RESUSCITATION Then, behind those doors, Dr. 2dDefendant places a tube down the wrong passageway. Still, Dr. Defendant has no clue what had happened to Lorena. Finally, Dr. Defendant joins Lorena. She never removes the tube. For the next 19 minutes, Lorena's entire airway was plugged up with a tube stuck down the wrong passageway. NEGLIGENCE LIST You will hear from: 1. Expert: You will hear from Dr. NEUROLOGIST, a nationally known author, teacher, and expert who teaches at HARVARD MEDICAL SCHOOL, that Lorena's brain could survive 5 minutes in that condition. These doctors had 5 minutes to correct their problem, before Lorena suffers irreversible brain damage. He will show proof of how he knows for certain that the tube was misplaced. DR. AFTER ATTENDING saved her. Dr. PATHOLOGIST--a world famous forensic pathologist who worked on cases that we all have heard of. He's probably the world's authority on the JFK assassination. He consulted on the Robert Kennedy assassination and has appeared on 20/20 on more than one occasion to discuss his high profile cases. It's his job to figure out how injuries occur. He will show proof of how he knows for certain that the tube was misplaced. Dr. EMERGENCY MEDICINE--an ER doctor will explain why Dr. Defendant violated her duties by not giving Lorena medicine for her problem. He will teach how delicate little babies are. NEONATES, and how they require closer attention than the rest of us. not a BACK YARD EXPERT 2 nurses will explain how Dr. Defendant violated the most basic standards of health care--standards McGehee -13

20 that are even known by the nurses. Finally, we have Dr. REHAB has projected out all of Lorena's costs of medical treatment for the remainder of her life. Assuming what they did doesn't cause her to die earlier, his numbers were then sent to Dr. ECONOMIST, an economics professor at TX A&M who reduced the cost of medical care down to "Net Present Value". He will also compute what Lorena lost in terms of WAGE EARNING CAPACITY because of her injury. DEFENSE Of course, these lawyers are not going to come in here and admit they were wrong. No, they were paid to defend this case. They are going to fight us every inch of the way. They've had over a year to think up answers to everything. Like I said, they could even force us to prove that Lorena was born. But our evidence will show that none of their excuses can justify why Lorena was left untreated until she finally stopped breathing. CONCLUSION Listen to the doctors and not only think about what they say, but listen for hidden agendas, any interests they might have with this hospital. Listen for whether the experts have any interests in this case that might not be apparent. Today Lorena Anzaldua is not the happy baby she once was. She no longer has a good life ahead of her. She no longer has a bright future. Today her future does not include growing up like a normal child, smiling, talking, crawling, walking, running, and playing outdoors with friends. Today she comes to you for help. Today we will test the system. Because this is a unique case, not a case where someone seeks a windfall, but a case where Plaintiff merely wants back what they took. And after today, I think the system will be improved, strengthened, made better. Because today, On May 6, 1991 in this courtroom, the system works. Plaintiff is counting on it. 2. Child death case Introductory comments in a child death case... NOT TIME TO DIE On November 15, 1990, little Toni Schwochow was a happy energetic young man. In his 8 years of life he played, made lots of friends, did pretty well in school, developed a love for Dinosaurs liked *[insert hobbies] liked *[insert activities] developed into a contributing member of the family. *list chores and he played drums in the family band--**[name of band] It wasn't time for him to die. He had too much more... to give his family to give his friends to learn from Mr. Brown, his school principal to learn from Mrs. *, his teacher It wasn't time for him to die. He had more songs to learn. more jobs to perform around the house *list unfinished chores (like "his tomatoes hadn't grown yet") more things to buy more *[insert hobbies] more *[insert activities] more happiness to give his mom more footsteps to walk in behind his dad. He had to see Jurassic Park. It wasn't time for him to die. He had his dreams high school college get married have a son He had the same life ahead of him that our kids had when they were 8 years old McGehee -14

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