Medical care practitioners who are criminal defendants are usually facing
imprisonment and professional ruin. This is understandably stressful. Yet
physicians being sued for medical malpractice (most cases are still against
physicians), where the odds of wining are 60% to 80% if the case goes to trial,
are also affected. Even when they lose, their insurance company nearly always
pays the settlement. Considering these odds in their favor, physicians should
view a trial with some 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. Pennzoil Co.,
[Texaco, Inc. v. Pennzoil Co., 729 S.W.2d 768, 822 (Tex.App.—Houston [1st
Dist.] 1987, writ ref’d n.r.e.).] 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 Pennzoil, a large corporation. The beneficiary of the contract was
Texaco, another large corporation. The plaintiff’s attorney (representing
Pennzoil) 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 Pennzoil 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.