Public Health Law Map - Beta 5 - Medical and Public Health Law Site

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.
1. Attacking the Defendant
To prevail in a medical malpractice trial, the plaintiff’s attorney must convince the
jury that the plaintiff is more deserving than the defendant. Ideally, this would be
done by building up the plaintiff; practically, it always involves some level of attack
on the defendant. The plaintiff must provide testimony that the defendant’s actions
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