Patrick Malone on Winning Medical Malpractice Cases With The Rules of the Road Technique
Posted by Alex Miller on Jul 12, 2015
The following is from an interview of Trial Guides author Patrick Malone on his book Winning Medical Malpractice Cases Using the Rules of the Road Technique.
Trial Guides: What made you want to write your book Winning Medical Malpractice Cases with The Rules of the Road Technique?
Patrick Malone: This is one of those areas where the old days are so different from the modern era. In the old days a plaintiff’s lawyer was worried about getting a top expert and then once you have the expert, you’ve got a case. Within the last 10-15 years it’s just been one horror show after another where people with good cases keep losing.
I considered a lot of my own techniques but more importantly saw what a lot of other great lawyers were doing to improve their track record [in medical malpractice trials] and get better results. I learned that there was so much more you have to do once you’ve mastered the technical case. You think you’re done, but really, you’ve just barely started in shaping the trial’s story and coming up with something that’s compelling for regular folks. So, that’s why I wrote the book.
Malpractice is one of those things I feel passionate about. It’s a public safety issue. There are a lot of Americans getting hurt every year by really inexcusable things that happen to them in hospitals, clinics, and doctors’ offices, and they aren’t getting the justice they deserve, so I’m trying to even the scales a little bit.
The Structure of Winning Medical Malpractice Cases Using The Rules of the Road
Trial Guides: What topics does this book cover, and how is it structured?
Patrick Malone: The book starts out with a big broad brush in chapter one where I talk about three big things that matter: words matter, values matter, beliefs matter. Lawyers tend to use words carelessly and not really thinking through big concepts. You hear lawyers talk about the "breach of the standard of care" which is a completely foreign concept to regular people. We need to talk in human terms about patient safety and violating basic principles of the rules that keep patients safe. Values, the human values in the case. I like to talk about medical care. Care with a capital C. The human care element is so critical. When you can show that that value of one human being caring for another has been violated in your case that’s going to step up your chances of winning the case. Finally, beliefs matter. Beliefs are how people think the world works. If you can fit your case into a framework of how they are pretty sure the world works even if they don’t want it to work that way. For example, doctors hurrying through a procedure out of wanting to get to the golf course, or to get back to their office to do something else, or greed. Issues a surgeon might put a patient through that they really don’t need, but a surgeon might need it for their own bottom line. Those are things you can connect to people pretty well. That’s chapter one.
Then we start in a series of chapters that do three basic case studies using medical negligence cases. Rick Friedman has one and I have two; three completely different kinds of medical malpractice cases, each using Rules of the Road in discovery, expert depositions, voir dire, opening statement, and throughout trial to closing statements. Rick’s is a birth injury case. Mine are a surgical misadventure cases, where a doctor cut something they shouldn’t have cut and causes personal damage. And the other is a misdiagnosis case with tragic results in a cancer case.
We do a whole series of chapters where we do things like, here’s the opening and then we step through some real transcript with the reader looking over our shoulder and having lots of little comments that say "here’s why we did this."
What issues do you address in voir dire? How do you structure an opening statement? How do you structure a direct examination of a witness? What are the important things to do in a cross examination? All of these are different chapters of the book.
The last few chapters are nuts and bolts chapters where we revisit key stuff that lawyers need to do. I’ve got a list of like 15 different items of discovery that need to be done that often aren’t thought about. I’ve got a good list of expert witness points for the care and feeding of your own expert. I talk about motions in limine. I talk about things that lawyers don’t do that they should do. For example, you’ve got to go out and visit your client’s house. Period. There’s lots of important information there that you’re never going to get from your client in the comfort of a lawyer’s own office. The first time you do that you will be sold on the idea of "hey, I need to go out there and see the way my people live."
That’s pretty much the structure of the book. One other thing on the nuts and bolts, the first question I ask people is “is this the right work for you?” Are you prepared for wrongful death cases, the effect of medication errors, or other malpractice lawsuits against health care providers? You really have to be a dedicated patient advocate. You have to be in it and not just for the money, but because you want to help human beings who have had terrible things happen to them. If you aren’t motivated by self-less motives, the problem with that is it translates into the way the case proceeds and makes you less effective. What makes me effective as a trial lawyer and advocate for my clients is I go the extra mile or 10 miles because I just believe passionately in my people, and I believe in their cases. Then it all comes out in the courtroom. To do medical malpractice cases well, you need to be somebody who really believes in what they’re doing. The sincerity of it is absolutely vital.
How is Winning Medical Malpractice Cases, different from other books on handling medical malpractice cases?
Trial Guides: How is this book different from other books for lawyers on trying medical malpractice cases?
Patrick Malone: I haven’t seen a lot of medical malpractice books for lawyers. But the ones I have seen are legal treatises, and they make the obvious points about what’s the case law; the burden of proof; and the elements of a medical malpractice case. Frankly, they’re a little bit boring for that reason. I try to take it to the next level of bringing the case out of the law books and into the courtroom.
Trial Guides: Who is this book written for? Who would benefit the most from buying it, such as new lawyers, experienced lawyers, people in specific practice areas?
Patrick Malone: Honestly, I think any lawyer who’s venturing into medical malpractice for the first time has to read this book. If you don’t or you don’t’ partner up with someone who has read this book is "cruising for a bruising" as we used to say back in my home state of Kansas. There’s just a lot you need to know. I’ve been pleased also that friends of mine who are very good trial lawyers with 20, 30, 40 years of experience have read this book and said, “wow there’s a lot of great stuff in here that’s I’ve learned.”
One of my buddies who’s the former president of International Academy of Trial Lawyers said he used up two or three books of sticky notes putting notes on all the pages that had some good stuff he wanted. I think it really covers all generations of lawyers and I think there’s something in there for pretty much everybody.
What problems does Winning Medical Malpractice Cases solve for medical malpractice lawyers?
Trial Guides: What tough problems does this book help medical malpractice lawyers solve?
Patrick Malone: One of the toughest problems is bringing your case out of the world of medicine, out of the world of the hospital and the clinic, which are very foreign worlds to jurors and they’re very differential to doctors and nurses about what happens in these foreign worlds. Because after all they’re just trying to care for human beings and help them in the best way they can.
And so, try to take your case out of that foreign world and bring it into a world that’s more familiar to juries. That’s why we’re always looking for the why of what happened and how it felt. If I can just mention one thing a really great trial lawyer and another Trial Guides author, Jim Perdue once said, “Decent lawyers tell you what happened, better lawyers tell you why it happened, the best lawyers tell you how it felt to the people when it was happening.” They make it very real and vivid. I have a lot of techniques in the book that talk about trying to not just get to the motive, but making it vivid to show people what really happened, how it felt, and how it felt so wrong to the patients and the family it was happening to.
Learn more about Winning Medical Malpractice Cases with the Rules of the Road Technique by Pat Malone, with contribution by Rick Friedman.