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Winning Medical Malpractice Cases

With the Rules of the Road™ Technique

Patrick Malone with Rick Friedman

Hardcover: 624 pages; 1st edition (2012)

Look Inside the Book
Preface   Sample   Trial Guides Podcast

Podcast (16:40 min.)

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Description

The authors of Rules of the Road return with this practical guide to all aspects of successfully representing patients in medical malpractice lawsuits. Straightforward and accessible, this book provides essential advice not merely for malpractice cases but also for all civil cases.

Readers will find answers to questions such as:

  • How do I best frame my case to show the jury that a verdict for the plaintiff will improve community safety?
  • What are the most powerful "Rules" that will show the jury why the patient deserves to win and that will motivate jurors to deliver full justice?
  • How do I best use my expert witnesses and keep them from stepping into defense traps?

The authors show step-by-step, with detailed annotations of actual trial transcripts, how to:

  • Construct an effective opening statement
  • Burst the credibility balloon of the defense expert
  • Lay the evidentiary groundwork for a powerful closing argument
  • Use literature to the best effect
  • And much more

This title is part of the Rules of the Road™ series by Trial Guides™

Table of Contents

Part One: What Matters and What Doesn’t

1. Why We Lose and How We Can Do Better

  • Words Matter
  • Values Matter
  • Beliefs Matter
  • Placing Medical Facts into the Framework of the Jury’s Values and Beliefs
  • Finding the Persuasive Frame
  • Finding Better Frames by Listening to Clients
  • Stirring Jurors to Take Action for Fellow Patients

Part Two: Surgical Malpractice and Informed-Consent Trial: Wood v. Tzenfg

2. Introduction to Wood v. Tzeng
3. Plaintiff’s Opening Statement: Surgery Case

  • Commentary

4. Testimony of the Plaintiff’s Liability Expert

  • Direct Examination of the Plaintiff’s Liability Expert
  • Cross-Examination of the Plaintiff’s Liability Expert
  • Plaintiff’s Redirect Examination
  • Commentary

5. Cross-Examination of the Defense Expert

  • Plaintiff’s Voir Dire Cross-Examination
  • Resumed (Substantive) Cross-Examination of the Defense Expert
  • Commentary

6. Cross-Examination of the Defendant Doctor

  • Commentary

7. Cross-Examination of the Second Defense

  • Surgical Expert
  • Commentary

8. Closing Argument: Surgery Case

  • Commentary

9. Plaintiff’s Rebuttal Closing Argument

  • Commentary

Part Three: Birth-Injury Malpractice Trial: Jameson v. Lewis by Rick Friedman

10. Introduction to Jameson v. Lewis

  • Rules of the Road

11. Voir Dire

  • Commentary

12. Plaintiff’s Opening Statement: Birth-Injury Case
13. Direct Examination of the Defendant Doctor

  • Commentary

Part Four: Wrongful Death Cancer Malpractice Trial: Semsker v. Lockshin

14. Introduction to Semsker v. Lockshin
15. Plaintiff’s Opening Statement: Cancer Case

  • Commentary

16. Direct Adverse Examination of the Dermatologist Defendant

  • Dermatologist Defendant
  • Commentary

17. Direct Examination of the Plaintiff’s Dermatology Expert

  • Voir Dire Cross-Examinatio of the Palintiff’s Dermatology Expert
  • Resumed Direct Examination of the Plaintiff’s Dermatology Expert
  • Commentary

18. Direct Adverse Examination of the Family Practitioner Defendant

  • Commentary

19. Direct Examination of the Plaintiff’s Internal Medicine Expert

  • Commentary

20. Plaintiff’s Closing Argument: Cancer Case

  • Commentary

Part Five: Bringing It All Together: The Nuts and Bolts of a Medical Malpractice Case

21. Selection

  • Selecting Yourself
  • Selecting Clients
  • Selecting Cases
  • Selecting Defendants

22. Discovery and Investigation

  • Getting the Documents
  • Experts: Their Care and Feeding
  • Adverse Experts: Obtaining More Documents
  • Adverse Experts: To Depose or Not to Depose
  • Defending Against Surprise Use of Medical Literature
  • Discovering Helpful LIterature for the Plaintiff
  • Overdisclosure the Plaintiff’s Case
  • 30(b)(6) Depositions: Corporate Spokespersons
  • Asking Big-Picture Questions While Deposing Defendants
  • Location, Location, Location
  • Spoliation
  • Scheduling Discovery

23. Preparing for Trial

  • Connecting to Your Client
  • Focus Groups
  • Occam’s Razor
  • Preparing for expert Cross-Examination
  • Motions in Limine
  • Rules of the Road

24. A Final Thought

Index

Reviews

  1. The blending of the Rules of the Road into specific cases, from voir dire through closing argument, is handled brilliantly. This book is an invaluable tool for all trial lawyers. I highly recommend Winning Medical Malpractice Cases: With the Rules of the Road Technique to any trial lawyer interested in exploring innovative ideas and techniques which will most importantly inure to the benefit of our clients.
    —Joseph A. Power Jr., past president of Public Justice and the Illinois Trial Lawyers Association

  2. I learned something of value on virtually every page of this brilliant work. This insightful book is a necessary addition to the library of every attorney who seeks to provide the best possible representation for the victims of medical professionals who do not follow patient safety rules.
    —Roxanne Barton Conlin, first woman president of the American Association for Justice, member of Inner Circle of Advocates

  3. Pat Malone is truly one of the finest lawyers in the United States. The thoughts in this book are as valuable to the new lawyer as one who has tried many cases for many years. The approach is fresh and persuasive. This is a terrific effort, and I think it would be malpractice not to read every word.
    —Tom Girardi, past president, International Academy of Trial Lawyers, recipient of the Lawyer of the Year award from Trial Lawyers for Public Justice for his work with Erin Brockovich

  4. In forty-five years of practice, I have tried more than sixty medical malpractice cases to verdict. With Malone’s treatise, I’m ready to try another sixty. This is an excellent practical guide.
    —Russ Herman, past president of the American Association for Justice, the Civil Justice Foundation, and the Roscoe Pound Foundation

  5. Pat Malone’s book is a must-read for the beginner trial lawyer and the seasoned practitioner. It provides a ‘how-to’ guide from a master in the field of trial advocacy, brimming with helpful tips and great ideas on every page.
    —Tom Moore, two-time recipient of the Lawyer of the Year designation from the National Law Journal, winner of more than 84 jury verdicts over $1 million and more than 500 settlements over $1 million

  6. A breakthrough for medical malpractice trial lawyers. A masterful combination of telling how it should be done and showing how it’s done in the courtroom. Malone and Friedman’s book has so much wisdom to digest that I’m reading it again and again.
    —James Bartimus, fellow of the American College of Legal Medicine, International Academy of Trial Lawyers, and International Society of Barristers; listed in Best Lawyers in America

  7. This book is a gift to victims of medical malpractice and their attorneys. Patrick Malone and Rick Friedman have not only disclosed and described their strategies and techniques for achieving successful outcomes in medical malpractice cases through application of their Rules of the Road technique, but they have also provided extensive examples, drawn from three of their own cases, of factual investigation, discovery, trial preparation, jury voir dire, opening statements, direct and cross-examination of expert witnesses, and jury summations. Even experienced plaintiff’s malpractice lawyers will learn a great deal from these examples, and from the authors’ observations, explanations, and practical advice. This is a wise and useful guide to the representation of clients in medical malpractice cases.
    —Stephen Wizner, dean of faculty, National Board of Legal Specialty Certification; William O. Douglas Clinical Professor Emeritus of Law and professorial lecturer, Yale Law School

  8. It was a double pleasure to read Pat Malone’s clear prose, and then to watch over his shoulder as he tried cases and showed readers the high points plus the warts that happen in any trial. I started putting sticky markers on pages where I wanted to go back and make note of a nugget that I wanted to remember for sure. Before I knew it, I had used up a couple of pads of stickies! That’s how many great new ideas I found in here, and I’ve been trying medical malpractice cases for forty-two years.
    —James Bostwick, past president, International Academy of Trial Lawyers, member of the Inner Circle of Advocates, Best Lawyers Trial Lawyer of the Year in Medical Malpractice, with more than $500 million recovered for his clients

  9. Rick Friedman and Patrick Malone’s original Rules of the Road book was a breakthrough in litigating personal injury cases and fighting against those who would destroy our tort system. This follow-up book by the outstanding Patrick Malone is an informative and important work that helps bring their powerful technique to the medical malpractice field, where those who are injured face the largest of stacked decks. This book and Patrick’s enlightening examples will be indispensable for those who are in the trenches fighting for injured citizens at the front line of the tort reform battle.
    —Charla G. Aldous, member of the Inner Circle of Advocates, past recipient of the Trial Lawyer of the Year award for the Texas Chapter of the American Board of Trial Advocates

  10. An essential new book. The copious real-life examples and analysis show how any well-prepared lawyer can create an algorithm to guide the jury toward a win for the deserving plaintiff. This book is a must before starting work on your next malpractice case.
    —Michael Koskoff, president of the Inner Circle of Advocates

  11. Any lawyer who has tried a malpractice case against Patrick Malone is apt to comment, ‘You can’t outwork him.’ In this book, this consummate trial advocate demonstrates that he not only works harder, but smarter too. The examples from actual cases give those who handle cases of medical negligence an invaluable shortcut in their preparation and a masterful battle plan for success.
    —Jim M. Perdue Sr., distinguished adjunct professor, University of Houston Law Center; author of Winning with Stories: Using the Narrative to Persuade in Trials, Speeches and Lectures, Who Will Speak for the Victim? and I Remember Atticus: Inspiring Stories Every Trial Lawyer Should Know

  12. A superb service in providing attorneys with sound and tested practical wisdom which will allow them to succeed in bringing justice to their clients. This is required reading for anyone who represents victims of medical negligence.
    —Kathleen Flynn Peterson, past president of the American Association of Justice; partner, Robins, Kaplan, Miller & Ciresi, LLP

  13. Every reader of this book will gain practical tips into all aspects of courtroom litigation. Malone manages to make the reader understand what a jury will be thinking as evidence is presented, and he demonstrates how persuasion can be done more effectively in every facet of the trial.
    —Judith A. Livingston, first woman and youngest admitted member of the Inner Circle of Advocates, named 2011 New York Malpractice Lawyer of the Year

  14. Pat Malone and Rick Friedman show how the Rules of the Road [technique] applies to medical negligence cases. By setting out the concepts, then annotating trial transcripts, and finishing with guidelines for preparing your case, they truly take the reader from theory to practice. But most important, they show by example what all those who advocate for patients strive to achieve-taking the seemingly complex and reducing it to its most essential, simple, easily understood form.
    —Ed Lazarus, trial consultant and litigation coach, Winning Works, LLC

  15. An extraordinary job of meeting an enormous challenge. Pat Malone has taken fundamentals of persuasive communications and placed them into the critical framework of what juries value and believe about our medical care system. These fundamentals hold true in both politics and the courtroom. We have to do a better job of listening to our clients/constituents to find better frames to tell their stories in language and images that are clear, concise, and compelling. Whether you are standing in front of a jury or in front of a town hall meeting, Pat and I agree that words matter, values matter, and beliefs matter.
    —Congressman Bruce Braley, past president, Iowa Trial Lawyers Association

  16. Pat Malone and Rick Friedman’s newest is a compelling assessment of our losing battle against the carnage of medical errors with solid advice to turn it around.
    —Mary Lynn Tate, codirector of the National Trial Advocacy College at the University of Virginia, fellow of the International Academy of Trial Lawyers, former president of the Virginia Trial Lawyers Association

  17. [This] book is revolutionary in bringing to the table the science of what makes the human mind move for, or against, one in trial. It has helped me tremendously in my work.
    —Jan Sawyer, human factors specialist and trial consultant, Litigation Focus Groups

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