Developing a Defense Trial Theme and Effective Local Counsel Relationships:

Developing a Defense Trial Theme and Effective Local Counsel Relationships: Start Early for Better Results William R. Lancaster Armbrecht Jackson LLP 1300 Riverview Plaza 63 S. Royal Street Mobile, AL 36602 (251) 405-1300 wrl@ajlaw.com

William R. Lancaster is an attorney with Armbrecht Jackson LLP, where he practices in complex litigation, defense of nursing home, medical malpractice, workers compensation, product liability, and employment law claims. In his 30+ years of practice, Mr. Lancaster has tried over a hundred jury and non-jury cases to judgment, including several nursing home cases. He is a member of the Alabama, Mississippi, Texas, and Tennessee State Bars, as well as DRI, the Mobile Bar Association, the Alabama Defense Lawyers Association, and the Mississippi Defense lawyers Association. He is co-author of Traps and Pitfalls of Medical Malpractice Litigation, Voir Dire, May 1988, and the author of A Practical Approach to the Punitive Damages Trial: How, When, Where, and Why MDLA Quarterly, Spring 2006. Mr. Lancaster has been named as an Alabama Super Lawyer in Employment Litigation Defense in 2008 and 2009. He has also been a member of the Alabama State Court Mediator Roster for a number of years, and is a qualified Appellate Mediator.

Developing a Defense Trial Theme and Effective Local Counsel Relationships: Start Early for Better Results Table of Contents I. Introduction Apples and Anvils?...97 II. What Is a Trial Theme and Why Do I Need One?...97 A. The Always/Never Caveat...97 B. My Thoughts on Trial Themes: Thank You, Dr. James...98 C. Looking for a Trial Theme...98 1. The Resident...99 2. The Family...99 3. The Facility...99 4. The Care and/or the Cause...99 D. I Have My Theme Now What?...99 III. Local Counsel...100 A. Do We Need Local Counsel in this Case?...100 B. How Do I Find Local Counsel to Consider?...100 C. Who Do I Select as Local Counsel?...100 D. Can I Be Your Local Counsel?...101 E. How Do We Work Together?...101 F. When Do We Hire Local Counsel?...101 G. How Can Local Counsel Help With a Trial Theme?...102 H. When Do We Decide on Our Trial Theme?...102 IV. Conclusion...102 Developing a Defense Trial Theme and Effective Local Counsel Relationships... Lancaster 95

Developing a Defense Trial Theme and Effective Local Counsel Relationships: Start Early for Better Results I. Introduction Apples and Anvils? Isn t a paper or a talk on Trial Themes and Local Counsel addressing two separate and distinct subjects? In some ways yes, but the two topics have an important connection. My hope is that we can discuss these two topics, and their interrelation, in a way that will help put our clients best case before the jury, and give our clients the best representation we can. II. What Is a Trial Theme and Why Do I Need One? Defining a trial theme is probably one of those things that goes without saying. However those things probably need to be said, and putting a definition up front will help us focus our discussion. A trial theme is the core message you want the jury to hear or think when they think about the case. It is the tag line or label that you want the jury to associate with the defendant. Just like advertizing has us thinking of a certain automobile insurance company as the good hands people or another company who puts us in a better state you want the jury to associate the defendant or the defendant s case with your theme. For instance, when a juror thinks defendant or defendant s case you want him or her to think of your theme, such as the family had unreasonable expectations and that poor lady outlived her body, or the people who cared for him did the best they could but what happened was not preventable. The trial theme is what all testimony, exhibits, and arguments should point toward. Every defendant needs a trial theme for a couple of good reasons. First, a nursing home trial involves an overwhelming amount of evidence and emotion. In order for the jury to reach the correct result they must have a lighthouse, a guidepost, a home base to which they can return when the testimony becomes too ponderous or the sadness becomes too great. They have to have an easy way to remember what your case is about. That is your trial theme. The second reason you need a trial theme is that you can bet your boots that the Plaintiff will have one, and you will hear it loud and clear from the opening whistle to the final gun. It will be catchy and memorable, just like a popular song. Profits over people, or revenue over residents, or the less alliterative but more direct they were too concerned with making money to hire enough people to take care of this poor soul. As the defendant you need to give the jury an easy way to remember what your case says as well, like no, the disease that killed him had been at work for thirty years and no amount of care can stop time or turn back the clock A. The Always/Never Caveat Always and never are the two most dangerous words in the English language. Unattributed Someone famous probably said that, or something like it and I just can t find it. I say that the saying is unattributed because I said it, and you don t see any quotes of mine carved in stone. In any event the point is simple. It s dangerous to say that one should always or never do a certain thing in trial because we just can t predict every situation. Therefore I want to be clear: I believe a trial theme is very important and should be developed, or at least considered, early in the life of the case. I am not saying that it is a necessity in every case. I just can t think of a situation in which it is not of benefit. Developing a Defense Trial Theme and Effective Local Counsel Relationships... Lancaster 97

B. My Thoughts on Trial Themes: Thank You, Dr. James Several years ago I was very fortunate to work with Dr. Phil James with Trial Solutions on several mock trial and focus group exercises in an effort to develop effective trial presentations for defendants in nursing home negligence and wrongful death cases. As I write this I am pleased to know that Phil is also speaking at the DRI Nursing Home / ALF Litigation Seminar and I hope you were able to hear his talk on the subject of voir dire. Most of what I know and most of what I think about defense trial themes in nursing home cases comes from Phil s Four Questions Jurors Ask in Long Term Care Cases. That is not to say that the Four Questions tell you all the themes. Instead, the Four Questions suggest where to look for your theme. Phil tells me that his view on the Four Questions has evolved and I think that s a good thing. Unfortunately the original Four Questions may not be the same now as they were when I was first exposed to the concept but they still identify the points and concepts a defendant needs to examine to find the theme for the case. The original Four Questions that I considered when I began developing defense trial themes for nursing home cases were: Who was/is the resident? What were the resident s/family s expectations on admission (and were they reasonable)? Who gets the money (if the Plaintiff recovers) and do they deserve it? If the resident received good care, how did this happen? Phil has refined the Four Questions to: Does the facility fit or break the negative stereotype? Did the facility care for or abandon the resident? Do the estate representatives deserve compensation? Was the medical care negligent? Looking at the new and the old questions tells us what we need to consider in developing a theme because these are the questions that the jurors will ask themselves and each other, consciously or subconsciously, and will ask of you in the jury room during deliberations. Effective trial themes should consider: The Resident. Not only medical conditions and co-morbidities but life history including jobs, military service, marriages, children, grand-children, accomplishments, and failures. The Family. Did they visit? Did they participate? Were they obnoxious? Did they expect a cure? Was there any discharge planning? Were/are there factions or favorites? Are they related to the Snopeses? The Facility. Do you have survey issues? Do you have charting issues? Do you go above and beyond the call of duty? The Care (and the Cause): Co-morbidities and the difficulties caused by them, but also the inevitability of some conditions. C. Looking for a Trial Theme I wish I could craft a trial theme as quick and catchy as coin over care but a defense theme usually needs to be too long to be that cute. Although I ll never get to tell a jury If it does not fit you must acquit, I can be happy knowing that a theme with a little more substance will probably work better. With the areas of 98 Nursing Home/ALF Litigation Seminar September 2012

inquiry identified, and with an idea of what jurors generally want to know about, let s look at some possible themes. 1. The Resident Certain nursing home Plaintiff lawyers used to start the trial with a big Olin Mills-type portrait of the Plaintiff and his or her family, usually taken when the plaintiff was much younger and healthier. That would be followed with the photos that we ve all seen of wounds, bandages, gaunt expressions, and the like. It s very important to bring out evidence that the resident lived a long and sometimes difficult life. This includes all the conditions and diseases that combined to require long term care. It has been suggested that a long life is easier to associate with a timely death, as opposed to an untimely death, and people can only accept a timely death. 2. The Family Many juries, not just in nursing home cases, want to know who gets the money. Frankly this is a tricky subject, and one that is probably off limits to direct evidence. The first thing I usually look for regarding the family is unreasonable expectations. As the saying goes where I come from and I suspect where you are as well juries don t get excited about giving money to people with unreasonable expectations. The family who insists on feeding the PEG tube resident by mouth is a great example of a fertile ground for showing that the family had unreasonable expectations. The best may be the family or family members that never, or seldom, visited. Many times one can effectively counter heart-wrenching testimony with the sad truth about the absent family. 3. The Facility The great thing about making your own rules is that you get to break them. Remember what I said about always and never? Well, to almost break that rule, your theme should almost always touch on, or refer to the facility. Why? Simply put because the plaintiff will almost always try to vilify or demonize the facility in some way. The best way to counter that is to show that, yes, mistakes can be made, but the staff at the home did a good job in CARING for and about the resident. I m not necessarily talking about medical care, but more about loving care. For instance the staff member who the resident gave a nickname, or a regular activity that the resident enjoyed. Be careful because you don t want to open the door to irrelevant evidence about conditions that you may be able to exclude in courts where you have that opportunity. 4. The Care and/or the Cause Focusing on the appropriate medical care and/or the inevitability of the death or injury works best when the plaintiff s theory on liability is vague or relies too much on the lack of documentation. The best example I know is the case in which the plaintiff alleged death by sepsis traceable to a particularly gruesome pressure wound on the coccyx. The situation became hopeless when the resident was diagnosed as having a fistula running from the colon to the wound. My co-counsel very skillfully cross-examined the plaintiff s physician expert on the development of the fistula and had him admit that it could not have been predicted, prevented, or treated. The trial lasted several more days but it was really over at that point. D. I Have My Theme Now What? When you decide on your theme you have the tune that you want the jury to hum when they think about the case. Now you need to focus your evidence and the proof demonstrating your theme. I ve heard it said that a lawyer only gets three opportunities to testify at trial: opening statement, cross examination, and Developing a Defense Trial Theme and Effective Local Counsel Relationships... Lancaster 99

closing argument. That s three times you want to sing your song, but there are obviously others, such as direct examination and even motions and jury instructions if you are allowed to draft them. Depending on how you are allowed to conduct voir dire, that may be the first time you tell the jury this case is about a man who lived a full life, and when his health was failing went to live at Hometown Rehab over on Elm Street, where the staff took good care of him but he passed away due to the effects of the diabetes that he had fought for 32 years. Or maybe in opening statement you can tell the jury you will hear a lot of testimony in this case but I ask you to pay close attention to the testimony about the many things the staff at Hometown Rehab like Ms. Jane Smith and Mr. John Davis did for Mr. Plaintiff every day, but also to the medical testimony of exactly what the tests showed was happening to Mr. Plaintiff every day because of his medical problems. III. Local Counsel This is not much of a gentle transition to our other topic, but now that we have talked about trial themes we need to talk about one of the best sources and sounding boards for a theme. I will make these suggestions about local counsel intended for the lawyer who primarily represents the client and has the opportunity to do so in an unfamiliar jurisdiction, who I call lead counsel, and the lawyer who has the opportunity to represent a client in a matter by virtue of the fact that lead counsel in the case needs assistance from the lawyer I will call local counsel. A. Do We Need Local Counsel in this Case? Obviously if the case is in your local jurisdiction, no you don t. Also obviously, if the case is in a jurisdiction in which you are not admitted then you do. As usual, the close calls in the middle are a little tougher. My rule of thumb is the smaller the jurisdiction, the greater the potential need for local counsel. If plaintiff s counsel is local, or if he or she has hired local counsel that s a big indicator that you don t need to have your client represented by the only foreigners in the courtroom and that you do need to consider hiring local counsel. My other rule of thumb here is to ask a local lawyer whom I trust what he or she thinks. On the other hand, if I am lead counsel and I feel comfortable with the jurisdiction and the judge, and I can consider this case my home turf then I don t feel local counsel is necessary. B. How Do I Find Local Counsel to Consider? Avoid the temptation to hire the judge s brother or brother-in-law. However, that may be the person you need to ask for a recommendation if that person is someone you trust. If I don t know anyone local to ask who to consider as local counsel, ask people who are not local, but who know lawyers in the local jurisdiction. Lawyers are the first choice to ask but don t shy away from non-lawyers to ask who is the best lawyer in town and why? Don t be upset when the answer is plaintiff s counsel or local counsel. Your response is Okay, who is next best? C. Who Do I Select as Local Counsel? I am looking for a good trial lawyer who will be able to work with me and my team. In order to find the right person I sit down face to face and explain the entire case, the client s needs, and my view that if we are going to work together on this case we must work together in that there is shared responsibility for the case but assigned responsibility for certain tasks. Assignment of responsibilities must be a mutually decided process and I have to feel like I can work with local counsel. If I don t feel that I can, we move on. 100 Nursing Home/ALF Litigation Seminar September 2012

After I explain the case and the client I ask the lawyer if he or she would like to discuss being retained as local counsel. If the answer is yes I discuss two very important issues: fees and communication. I m not kidding when I say that fees are an important issue. Rates, billing content, frequency of billing, and approved expenses should be explained in as much detail as possible. Get this straight up front and you won t have to deal with a problem later that should have been avoided. A word about rates is warranted here. I believe that local counsel s rate should not be more than lead counsel s rate, absent extraordinary circumstances. Client communication is just as important. Both lead counsel and local counsel represent the client so the client should be able to communicate with each and both. However it is important to establish an understanding about communications in order to give the client information that is accurate and helpful. I m not suggesting that such information should be sanitized but there should be a system and an understanding whereby any information is shared by all. D. Can I Be Your Local Counsel? If someone wants to hire me as local counsel the issues are similar but not the same. The first issue, of course, is potential conflicts of interest. True conflicts are disqualifiers but close calls and those relationships that may run afoul of the smell test must be examined and discussed. This is especially true of the local issues that are not readily apparent, such as the firm partner who is married to the plaintiff s brother. Potential local counsel must find those out as well, and must disclose them. Once again talking about them early is vastly better than having to talk about them later. The next big issue is whether I can be an effective local counsel for you and your client. I have been asked to serve as local counsel in counties adjacent to my home county and I have to decline because I ain t local in that county. I usually am able to help the person who calls me by giving a recommendation for local counsel, or for someone to ask about local counsel, but I tell them that I m not the one you need. After conflicts of interest the other issues are very similar. We have to be comfortable with fees and billing procedures, and we have to have an understanding about client communication. Almost as important is whether we can work together. If I am comfortable with the possibility of working with a lawyer as local counsel I usually tell the lawyer something like when it comes to dividing the work just remember, you can t insult me or hurt my feelings; if you feel like it needs to be done let s talk about it and who is going to do it. The point is simple: we have to communicate. We have to talk about what needs to be done and our honest belief about the best way to get them done. E. How Do We Work Together? Usually lead counsel knows the case and the client better, and local counsel knows the local culture, the judge, the history, and the juries better. They must communicate. Be proactive about tasks that you know are coming. Be honest about the way you feel like they should be done. Lead counsel and local counsel must communicate. F. When Do We Hire Local Counsel? The cost of litigation has just about made civil jury trials a thing of the past. I realize that clients and insurers are hard-pressed to find ways to conserve resources. Local counsel can be managed as efficiently as any other aspect of litigation, but the way to do that is NOT by not hiring local counsel until the last minute. In fact, delaying consideration of the need for local counsel or hiring of local counsel at the last minute is the Developing a Defense Trial Theme and Effective Local Counsel Relationships... Lancaster 101

LEAST efficient way to manage local counsel. The best way to demonstrate to a plaintiff that a defendant is serious about a certain case is for that defendant to show that it is prepared to go to trial. The best way to do that is to hire local counsel early in the case, especially when that defendant s usual lead counsel is not local. When? As soon as possible. G. How Can Local Counsel Help With a Trial Theme? Local counsel can bring several things to the table when the trial team is working to develop a trial theme. The local counsel should be familiar with what has usually impressed or gotten the attention of juries in the past. He or she will know about the attitudes and opinions of the local people. Local counsel should be able to give insight into the views of the trial judge. Finally, how certain testimony and evidence will be received is another area in which local counsel can provide valuable insight. H. When Do We Decide on Our Trial Theme? This is a loaded question. Rather than be evasive and say it depends I should say that you should decide on a trial theme as soon as it emerges. Put another way, your theme will emerge from the evidence, the issues, and from your knowledge of juries in the area, and juries in nursing home cases. How do you make your theme emerge? Talk to your witnesses, review the medical records, and expose the issues. From them decide how your jury will likely see the case, and what will be important to them in deciding the case. IV. Conclusion If you need to think about local counsel in a case, you will know it. When you do, explore that possibility keeping in mind that the client s case demands the best presentation. The best presentation is a clear message to the jury telling them why their verdict should be for the client. That clear message is your theme. 102 Nursing Home/ALF Litigation Seminar September 2012