When defending wrongful death and catastrophic injury claims, clearly acknowledging the gravity of loss is critical to avoid alienating jurors as you argue the facts of your case. And in the latest episode of Trial Technique Spotlight, Shane Read, one of the nation’s foremost trial and jury consultants, analyzes how Scott Bailey’s heartfelt acknowledgment of loss in closings of a medical malpractice trial allowed him to more powerfully argue the facts of his case, ultimately clearing his physician client.
Tom Cox, 61, died of a heart attack in 2010, days after he had seen Dr. Arezou Fatemi, complaining of nausea, neck pain, and night sweats, among other symptoms. Cox’s wife claimed the doctor misdiagnosed Cox with a virus rather than acute coronary syndrome, a condition she claimed led to his fatal heart attack.
In leading off his closing argument for Fatemi, Bailey, of Huff Powell Bailey, emphasized the profound loss Cox’s family suffered, noting similarities he saw between himself and Cox.
“To lose a man like that, I can’t imagine what that would be like, and what [Cox’s family has] been through,” Bailey said, noting that he felt grave sympathy for that loss.
“I feel it every time we have a case like this. We all feel bad,” Bailey said. “The law says there’s no place for that in [your] deliberation. So you’re going to have to sort of set that aside, put that somewhere else in your brain when you decide whether or not Dr. Fatemi met the standard of care.”
Read says Bailey’s acknowledgment of the gravity of Cox’s death early in his closing was powerful, and crucial.
“Most attorneys are just scared to do that,” Read says. “But it is the key to getting the jury to focus on the facts of the case.”
And perhaps more importantly, Read adds, was the way in which Bailey acknowledged that loss.
“Was he looking at his notes? No,” Read says. “He was looking the jury in the eyes and speaking from his heart.”
And Read says addressing both the difficulty in setting aside sympathy, and the critical need to do so, helped him connect with the jury, allowing him to turn to the facts of his case with a more credible voice.
“The jury hears his voice, his compassion, and now they’re more open-minded to listening to Scott Bailey’s argument.”
And those jurors ultimately cleared Fatemi in the seven-figure trial.
Read’s analysis is the latest in CVN’s ongoing series, Trial Technique Spotlight, with Shane Read. Read is a nationally recognized trial consultant and award-winning author who has helped thousands of lawyers transform their deposition, trial, and oral advocacy skills through in-house training programs, one-on-one coaching, and keynote speeches. And in each episode of Trial Technique Spotlight, he uses CVN’s courtroom video to detail the techniques the nation’s top attorneys use, and how to best use them in your own cases.
You can learn more about Shane and sign up for his newsletter at ShaneRead.com.
Email Arlin Crisco at acrisco@cvn.com.
Related information:
Learn how Shane Read can help you with trial and jury consulting.
Watch all the episodes of Trial Technique Spotlight, with Shane Read.
Watch the trial at the heart of this episode.
