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Trying the Act or the Person

Physician defendants win 60 to 80 percent of the medical malpractice cases that go to trial. Even when they lose, their insurance company nearly always pays the settlement.

Considering these odds in their favor, physicians should view a trial with equanimity. Most do not. Some have even committed suicide before their cases came to trial.

One of the roots of this fear is the belief that the physician's personal worth, rather than the quality of the medical care, is on trial. Most physicians believe that being found guilty of malpractice is a moral judgment equivalent to being found guilty of a crime. This belief partly reflects a misunderstanding of civil law. One is not found guilty of malpractice; one is only found liable to pay money for the injuries attributable to the malpractice.

More fundamentally, though, it reflects the correct perception that trials are about people, not actions. Although every case must meet technical legal requirements--otherwise the judge will not allow the case to go to the jury--the plaintiff must do more than present evidence on the technical elements of the case. The critical issue is that the jury must be persuaded to rule for the plaintiff.

Persuading the jury to agree with the client is the heart of the trial lawyer's art. Facts are sometimes persuasive on their own, but usually it is their presentation that is critical. Creating empathy for one's client is critical to successful litigation. (This is true even in business litigation, where the legal questions may be complex and the actual injured party a faceless corporation.) Lawyers want to focus on people rather than legal technicalities.

The best example of this technique is the case of Texaco, Inc. v. Penzoil Co. (1987), whose $10 billion verdict is the largest in U.S. history. The legal issue in this case was whether, and when, a contract to sell a company was formed. The damages were the loss of the value of the contract by Penzoil, a large corporation. The beneficiary of the contract was Texaco, another large corporation. The plaintiff's attorney (representing Penzoil) presented the necessary technical evidence on the contract questions, but he persuaded the jury to give his client money by personalizing the case. He was able to vest the corporate identity of Penzoil in its chairman, ostensibly a lovable Texas businessman. Texaco was identified with its New York investment bankers. The defense exacerbated its problems by rebutting the plaintiff's presentation of a human drama with dry financial and legal niceties. The verdict was achieved through trying the personalities in the case as much as trying their actions.

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