Learning From Other Lawyers

May 16, 2017
BY: Domhnall O'Cathain

When researching a medical issue some time ago, I stumbled on the website of a very well regarded personal injury attorney, Patrick Malone. I recognized his name as an attorney who gave a very good CLE (Continuing Legal Education) class on a telephone conference that I heard in recent years.

Patrick Malone’s website contained some trial transcripts of opening and closing statements from cases he tried successfully. Always eager to learn from other attorneys, I read through some of those arguments as nighttime reading last week. And thanks to those transcripts, I remembered something I had nearly forgotten, and I learned something new!

What I Almost Forgot

When I first practiced as an attorney, I worked for a very talented trial attorney who defended doctors. One of the great techniques he used at a trial (and a reason he was so successful) was flipping the case so that the jury was more focused on what the injured plaintiff did or didn’t do, instead of the doctor’s negligence.

For example:

  • Mrs. Smith, isn’t it true that you missed the appointment scheduled in January 2013?
  • Mrs. Smith, isn’t it true that you never thought of getting a second opinion?

How would a good plaintiff trial attorney deal with that in closing?

  • Mr. Defense Attorney asked my client, Mrs. Smith, about a second opinion and also asked her why she missed the appointment 1 year after the surgery in which everything went wrong. Not one instruction from the judge will discuss a second opinion or a requirement to go to an appointment 1 year later. The standard is not whether you should go back to the doctor who injured you one year later. This case is about, and what you must decide, is whether or not the doctor did what he was supposed to do for his patient

What I Learned

In a case where Patrick Malone represented the family of a man (Richard) who died from a delay in diagnosing cancer, Mr. Malone brought himself back to the day before Richard learned of the cancer and imagined this conversation.

I never saw this approach before:

  • Richard, you’re going to see the doctor tomorrow, and he’s going to find something on your back that’s been there for a long time. It should’ve been removed before but now you’re going to find out that it is too late. Now there’s nothing we can do about it, except to make up for it later on down the road. And your girls… you’ll get to the high school graduation, but you won’t get to the college graduation. You won’t get to the wedding aisle …

The jury found in favor of Richard and his family and I was reminded of a valuable lesson:

You’re never too old to learn something new.