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This Was a HORRIBLE Example of What Lawyers SHOULD NOT Do During Closing Arguments


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1/23/2018
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I took my daughter to court today.
She's home from college during winter break.
She's expressed an interest in law, so I took her to court to see if she could watch a few ongoing trials.

I also took her to court last week.
We got to see a medical malpractice case and a criminal case in action.
First, I'll tell you about the malpractice case we saw last week.

It involved a man who was being transferred from his bed to a stretcher for a urology procedure.
As he was being transferred, he fell from their grip, hitting the floor and injuring his neck.
When my daughter and I walked into the courtroom, we knew none of this.

We sat in the back of the courtroom and began to take it all in.
It was one attorney against three.
The patient's attorney was questioning an anesthesiologist who was guiding the patient's head as the transfer was being made to the stretcher.

The patient's attorney was a famous lawyer.
He was well known throughout the New York legal community as being a very dangerous advocate and for consistently getting excellent results for his clients.
The problem was that he was well past his prime.

He appeared to be in his 80's and had difficulty controlling the doctor on the witness stand.
He should have been asking her short, leading questions calling only for yes or no.
What he got was long-winded answers.

He couldn't control the witness and it showed.
He knew better but couldn't do it the way he used to.
That was a shame to see.

It was apparent to everyone in the courtroom that this attorney was struggling to show that the doctor was careless and contributed to his clients' injuries.

After fifteen minutes of listening to this arguing over the wording of some questions, the patient's attorney sat down with a whimper.
That never would have happened in his prime.
What a shame.

Next up was one of the defense attorneys.
I knew him.
I had tried a case with him years ago.

He was a senior partner now in this defense medical malpractice law firm.
He took charge of the entire courtroom when he stood up and introduced himself to the anesthesiologist on the witness stand.
From here on out, there was no question who controlled the witness...he did.

He was confident.
He was articulate.
He asked short, leading questions.

He projected confidence in his defense.
He was even so bold as to ask the doctor to explain certain medical terms for the jury.
Interestingly, this was not his client.

Yet he used her to help the jury understand what his client did and didn't do.
He actually represented the hospital and one or two of the other health care professionals who were involved in this 'dropping-the-patient' incident.
We stayed another ten minutes before leaving to find another ongoing trial.

When we walked out of that courtroom, I asked my daughter what she thought of the patient's attorney.
"He seemed old and couldn't ask a single straight question," she responded.
"She kept talking and explaining away and he just stood there listening. I thought you're not supposed to allow the witness to explain anything when cross examining a witness," she said.

"You're absolutely right," I told her.
"This lawyer was an excellent lawyer back in the day. Now maybe he should consider hanging it up," I commented.
"What did you think of the defense lawyer who then got up to question the anesthesiologist?" I asked my daughter.

"He was amazing. He knew exactly what he wanted answered. He asked only leading short questions and had no trouble answering them. The jury was paying lots of attention to this lawyer, but not the patient's lawyer. Big difference," she remarked.
I had to agree with her.

Her observations were right on target.
We then went across the street to the criminal court house to see if we could catch a criminal trial in progress.
We did.

There was a very young prosecutor wearing a very tight blouse and skirt asking a police detective on the witness stand questions.
The prosecutor asked questions that caused the detective to tilt his head and wonder why she was asking some really simple and basic questions.
"Detective, why do you use a database to collect information about a criminal suspect?"

"What do you call the name of this database?"
"What did you do after you searched the database?"
"When you went to that person's home, did you meet anyone there?"

I've never seen a witness wonder why their own attorney was asking such bizarre questions.
These questions appeared to have no bearing on the actions of the detective or anything she was trying to prove.
If I, as a bystander, sitting in the courtroom for a few minutes was confused, imagine what the jury was going through.

My daughter made another interesting observation...
"The prosecutor repeatedly started a question, got confused, said 'Strike that' and then tried to ask another question. It was really annoying," she mentioned as we walked out of the courtroom.

Ok, now you know the backdrop of why we were in court last week.
That brings me to today's excursion to court.
My daughter really enjoyed coming with me, which is nice to hear.

The first courtroom we entered, we saw it was a jury trial.
The judge had just started to tell the jury that "This is now time for the attorneys to make closing remarks. The defense attorney will present his closing first," he said as he pointed to the defense attorney to begin.

We knew nothing about this case...yet.

The defense attorney appeared to be in his mid 60's.
Overweight.
Wearing an ill-fitting and well-worn grey pinstripe suit.

He approached the lectern, placing it squarely between the jury and himself and stood behind it.
He leaned his elbows on the lecturn as if he was having a jolly good conversation with some blokes at the park.
Thankfully, he wasn't using any notes.

His manner was conversational.
That was good, at first.
This was a slip and fall case.

The defense lawyer prefaced his remarks saying this would be a really quick argument.
The injured victim was in a guy's truck and as she got out of the truck, she fell and injured herself.
That's it.

That's the whole case.
The jury was to decide who, if anyone, was legally responsible for this person's injuries.
The defense attorney tried to argue that his client, the truck driver didn't do anything wrong.

He then inexplicably made a glaring legal error, which the plaintiff's attorney didn't pick up on.
"It's my opinion that my client did nothing wrong here," he said.
Why is that wrong?

Because it doesn't matter one whit what the attorney believes.
It's the jury who has to evaluate the evidence to determine who was believable.
Anyway, since the victim's attorney didn't pick up on it, it was ignored and the attorney continued blabbering away.

After no more than five minutes he finished by saying, "You know, you may find that the plaintiff, the person who brought this lawsuit is also at fault here. In fact, you might think they're equally at fault here."

That was it. 
A bare-bones, no frill, no substance, no great oratoracle skills closing argument. 
It was made with a blah attitude.

No conviction.
No sense of outrage.
No sense of moral right or wrong.

What a shame.

The plaintiff's attorney was only slightly better. He argued that his client was probably at fault, although not as much as the defense lawyer argued. Instead of 50/50, maybe they'd see their way to a 70/30 split.

I get it.
If the facts show that your client is partially at fault, better to admit it and move on than to argue the point.
You gain more credibility here.

But there were no photos of the truck she fell from.
Only a photo of a different truck, unrelated to the one involved in this case.
How the judge allowed this into evidence is beyond me.

There were no photos of the inside of the truck to confirm or deny the claims that there were no hand-holds for the passenger to grab as she navigated her way out of the truck. Didn't seem like there was much here except the truck driver who testified and the injured victim. 

A classic case of 'he said', 'she said'.
Who does the jury believe.
I asked my daughter who she believed, just based on watching this closing argument.

She said "I think the defense had a better argument, although the defense lawyer looked and acted doofy when giving his closing argument."
That was an interesting observation.
Why?

Because she took into account the appearance and the presentation of the attorneys when answering my question.
I asked "What did you think of the plaintiff's attorney and his closing argument?"
"He stood in front of the jury, perpendicular to them. He didn't often look at them when he was talking. It was so weird," she noted.

I agreed.
I told her "When you're communicating and talking to the jury during opening arguments or closing arguments, it's as if you're having a conversation with someone in front of you. You MUST make eye contact. You MUST look at the jurors in the eye. If you talk to the wall while you're making your arguments, not only is it socially awkward, but suggests a lack of credibility if you can't look these folks in the eye."

When we walked out of the courtroom, I felt very unsatisfied.
I felt as if both attorneys did a really poor job of communicating their messages to the jury.
They failed to truly argue their points convincingly.

You couldn't get the sense that they really believed in their case.
Again, that's a shame.
In all likelihood, the jury verdict will reveal their apathy.

As for my daughter, she got to see what NOT to do during closing arguments.
Often times, it's just as important for someone interested in law to learn what NOT to do as it is to learn what to do.

To learn more about closing arguments, I invite you to watch the quick video below...



Category: Medical Malpractice

Gerry Oginski
NY Medical Malpractice & Personal Injury Trial Lawyer

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