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Putting the pieces together: the two-part closing argument in a medical malpractice case appeals to the head and the heart to create a portrait of negligence.

Article Excerpt
Mark is a 41-year-old draftsman. When his right shoulder starts hurting, he goes to an orthopedist, who recommends surgery at an outpatient facility. Anesthesia personnel at the hospital place an endotracheal tube too deeply--ultimately causing his heart to stop. Mark lies in a coma for two weeks before he dies. (1)

After Lois discovers a lump in her right breast, her gynecologist recommends a biopsy. The hospital-based pathologist interprets the results as positive for breast cancer and urges a radical mastectomy. Following the surgery, Lois's brother has the original biopsy slides reviewed by another pathologist, who discovers the lump was benign. Lois never had cancer, but due to the mastectomy, she suffers extreme pain and undergoes several corrective surgeries. (2)

David is diagnosed with a bulging disk on his spinal cord, for which he undergoes surgery. He is under general anesthesia when his body is moved into a sitting position and his head fixed to a padded headrest with surgical tape. For over an hour, his blood pressure drops to dangerously low levels while the neurosurgeon pushes and probes the spinal cord without David's skull safely secured. He awakes a quadriplegic. A man who prided himself on providing for his family is now totally dependent on others. (3)

In all of these cases, the defendants hotly contest issues of liability and damages. In Mark's, the defendants produce experts who contend he had a "diseased heart" that explains his arrest on the operating table. The defense in Lois's case argues that the frozen section slide was properly interpreted and calls the original diagnosis a "matter of judgment." In David's trial, anesthesiology experts testify that blood pressures are routinely kept low to minimize bleeding. A rehabilitation expert points out that despite his disability, David is intelligent and can work as a lab technician or a desk clerk.

These cases all resulted in significant verdicts for the plaintiffs. In each one, the closing argument was crucial.

The plaintiff's closing argument is part fact, part law, and part science. It must make sense and convey reasonable rationales for liability and damages. It must also inspire the jury to render a favorable verdict, despite widespread hostility toward trial lawyers and litigation. Since plaintiffs bear the burden of proof, they have the right to make their closing arguments in two parts: summation and rebuttal. Two opportunities to persuade--two different types of arguments. Counsel who understand the opportunities and obligations of the bifurcated procedure can bring persuasive purchase to their client's cause.

The summation

Many states require a plaintiff to "fully open," meaning that the lawyer must touch on every aspect of the evidence and jury instructions if they will be discussed further during rebuttal. (4) Because defense counsel may respond to anything the plaintiff lawyer argues, this is not a time to shoot from the hip or use dangerous analogies. Rather, the summation lays out a logical blueprint for a plaintiff's verdict. The summation prepares the brain for the later thrust to the heart--the rebuttal that inspires the jury to action by appealing to what everyone knows is just, right, and fair.

Start crafting from the day you take the case. Once you have committed to a case, you must understand how the evidence interacts with the legal questions the jury will consider. The law that applies to a case directs the investigation, discovery, and, ultimately, the presentation of evidence at trial. Crafting the summation runs parallel to these efforts.

You should have a draft set of jury questions or instructions on file from the outset. During discovery, make written notes of your thoughts that may relate to the closing argument. Observations about your client, a defense witness, or opposing counsel's conduct will be as true at the end of the trial as they were during a deposition or discovery hearing.

Enhance your credibility. Summation should show that you are credible, trustworthy, and reliable. Though we call this part of the trial "closing argument," your presentation should not be belligerent or...