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.

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 polemic.

Use visual aids. The effective visual tools that you used during trial should be reintroduced during summation. For example, you can use videotape to replay key admissions as soundbites. You can narrate computer animation showing the mechanics of the injury as if jurors are observing the events contemporaneously.

Remember the visual anchors set during trial. If you positioned a blowup in a certain place while a witness testified, set it in the same place during summation. Stand where you stood during cross-examination to enhance the jury's recollection of that moment. Use reminders such as, "You remember when we showed you this chart the first time," or "You saw this four days ago and recall what the doctor said." Re-establishing these anchors enhances the jury's comprehension and recollection of the evidence.

Reweave the story's fabric. Opening statement tells a story based on what the evidence will show. Summation is the story based on what the evidence has shown.

Studies suggest that at the beginning of trial, jurors are not persuaded by rhetoric that appeals primarily to emotion. (5) In their commitment to be fair, they want to know the facts--just the facts. But a jury that has received the evidence, seen the plaintiffs injuries, and heard the experts is a different audience. Although the jury knows the ending, you must still narrate a persuasive story whose theme is the defendant's negligence.

Incorporate facts into a "present tense" story. This technique involves the jury in the events as they unfolded, but with the full knowledge of the evidence, giving them a clear view of the negligence that caused the plaintiff's injury. For example, in Lois's case [this and other extracts have been edited for publication]:

   The OR technician brings the lump of tissue
   from Lois's breast to the pathology department
   at the hospital. Lois is on the operating table.
   Her surgeon waits for the results. Dr. Anderson,
   the pathologist, tells the pathology technician
   to freeze the suspicious lump. Don't we
   want to tell Dr. Anderson, Wait: Don't freeze
   all of it I Freezing creates artifacts variations
   in the tissue sample that result from freezing.
   Since freezing can distort cell structure, it can
   lead to misinterpretation. The standards of the
   American Pathology Association say that with
   a lump this size, you shouldn't freeze all of it.

      The technician freezes the whole lump, and
   then sections it into slides. Dr. Anderson sits
   at the stool in front of his microscope. He
   looks at it for a few seconds. Don't we want to
   yell at him, Wait, Doctor, there's no rush here.
   Please, take your time. If this is a close case,
   take your time.

Put an argument into the story. A rule of advocacy is that although it is almost impossible to tell a story within an argument, you can make an argument within a story. For example, the plaintiff in David's case contended that the injuries were caused by the defendant's using out-of-date operative techniques. The argument was worked into the story this way:

   David is anesthetized, and the scrub nurse
   pushes his head up against this horseshoe
   headrest. Dr. Angel takes out a roll of surgical
   tape and begins to wrap it around David's head
   to hold his body weight in this sitting position.
   Let me stop there, because that is the way they
   may have done a surgery like this 35 years ago.
   Fortunately, medicine is not a static field. We
   all know that the advances made by health care
   professionals over the last 35 years have been
   amazing. In that period of time, doctors have
   developed technologies that let them view into
   our tissues without having to cut into a
   patient. Those suffering from debilitating
   arthritis can have a titanium replacement joint
   put into their body and be active and pain-free
   within a matter of months. Doctors have successfully
   mapped the entire structure of
   human life through our DNA. Yet, with all
   these incredible advances over the past 35
   years, Dr. Angel suggests to you there is no reason
  to graduate past cloth tape.

Use analogies. Analogies provide context and ask jurors to apply their own experience to what they have heard. (6) In Mark's case, the plaintiff claimed that the anesthesiologist who Mark met initially did not give him the anesthesia; a certified registered nurse's anesthetist (CRNA) he had never met did. An analogy helped jurors understand why this was important:

   Mark trusted these medical professionals, just
   as anyone who's ever flown in an airplane
   trusts the captain and crew. Mark was not the
   pilot, he was a passenger. When we settle into
   those uncomfortable airplane chairs, attach
   our seat belt, and hear the comforting voice
   saying, "This is your pilot speaking, we have
   been cleared for takeoff," every one of us expects
   that the voice belongs to the person who
   will be flying the plane. No one thinks that the
   pilot is planning to step out just before takeoff
   and leave the controls to a member of the
   grounds crew.

Make a cognitive appeal. The summation appeals to logical thought. While you may retell the story with emotion, you refer to the medical records, summarize expert testimony, and re-emphasize the medical literature or demonstrative exhibits you used during trial. Multiple rationales can lead to a conclusion, but a simple syllogism for a medical malpractice case goes like this:

* The standard of care for this procedure is well established.

* The standard of care is well known.

* Breach of the standard of care is known to produce the injury the plaintiff suffered.

* The defendant breached the standard of care.

* The plaintiff would not have suffered this injury if the standard of care had been followed. (7)

You can use a chart summarizing testimony to underscore the logical appeal of the plaintiff's case: Showing how the experts agreed, disagreed, or avoided the basic factual propositions of the case anchors that testimony for jurors. Presentations of the medical literature used during the case reinforce the plaintiffs reliance on written standards. Point out the absurdities that would result from the defendant's propositions, whether factual or medical. This reminds the jury to accept the commonsensical over the obscure.

Explain the court's instructions. Different jurisdictions instruct juries in different ways. Whatever method is used, summation is the time for the plaintiff to embrace the law governing the case. By explaining the court's instructions simply and fairly, you gain credibility while guiding the jury's discussions. Always embrace the burden of proof. Argue that sympathy should never guide deliberations. And distinguish the concept of negligence from an intent to injure, which is a criminal offense.

A complicated medical malpractice case appeals to different jurors for different reasons. Experts may identify multiple violations of the standards of care. One juror may accept one rationale, while another may reject that reason but accept another one. Explain to jurors that they need not agree on all the reasons, just the result. You might use a table listing the multiple theories of liability, offering each as an independent basis to support the plaintiff's verdict.

The concept of damages is often foreign to jurors when it is first introduced in their instructions. Courts typically offer only vague definitions, providing little substantive guidance on how to value elements such as disfigurement, mental anguish, and loss of consortium. In the summation, explain the elements of damages and translate them into common experience, as in this example from Lois's case:

   Americans spend $8 billion a year on cosmetics.
   This is $2 billion more than the estimated
   annual total needed to provide basic education
   for everyone in the world. Why? You know the
   answer. Men and women want, need to look
   good. Our appearance makes us feel better
   about ourselves, do better on the job, and
   relate better to others.

      You don't need to be an expert to know that
   the needless, senseless scarring of Lois's chest
   and breast are significant. Even though they
   cannot ordinarily be seen by others, she agonizes
   about them every hour of every day.
   Every morning when she dresses for work, she
   has to face her own tortured portrait. Imagine
   the terror that would go through her mind if
   she were to find someone she liked and was
   interested in her: What will he think? How will
   he react? Your common experience tells you
   that mental anguish for a woman like Lois is
   not an abstract concept.

Empowering the jury to render a substantial damage award is best achieved during rebuttal, but during summation you should use the court's instructions to lay the groundwork for your damages arguments.

Place the burden on the defendant. Defendants do not need a jury to accept their version of events; rather, they only need it to face too confusing or too complex a situation to feel secure in finding fault. Plaintiffs cannot allow the defendant's medical theories and explanations to go unchallenged. Although a defendant may not carry the burden of proof, a plaintiff is free to argue that any defense explanation should be evaluated with the same common sense that the jury applies to the plaintiffs case.

In most medical malpractice cases, defendants make excuse after excuse for their conduct. They present independent medical experts and testify on their own behalf. They propose alternative causes of injury to suggest that their conduct made no difference.

You might use an "excuse chart," listing every' factual or medical theory of the defense. The more the better, because numerous theories collapse under their own weight. Raise rhetorical questions--How do they support that? Have you seen any evidence of that?--and the jury will want answers. If you do this correctly, the answers cannot be provided.

Summation does not stand alone. It is part of a larger drama that sets the stage for the defense's closing and the plaintiff's rebuttal that follows. You want the jury to think about something else as the defendant closes and to look forward to hearing you again in rebuttal. Leave the jury wondering about questions that favor the plaintiff:

   You have sat patiently and listened to the evidence
   for two weeks. During that time, many
   of you have probably asked yourselves, Why
   didn't somebody do something earlier for
   Mark? What would it have taken for this doctor.
   this anesthesiologist, to have been in the
   operating room instead of drinking coffee
   down the hall? I don't think you are going to
   hear answers to those questions from the
   defense in the next hour.

The rebuttal

The rebuttal gives the plaintiff the opportunity to respond to the defense argument and resolve significant factual disagreements. But it must appeal more than cognitively. This is the time to inject the affective theme--the moral of the story. While the opening's cognitive approach anchors the plot, the affective theme drives jurors to action.

The theme is about empowerment: inspiring the jury to help someone who is weak, vulnerable, and unable to make things right alone. Since our core desire as human beings is to make a difference, jurors must believe their verdict is important, that what they decide will matter.

The best affective themes mirror the defense argument. The plaintiff takes a defense contention and reverses it, so that it appeals to the hearts and souls of ordinary citizens. Listen carefully to the defense's closing for both substance and phrasing. Typically, jurors first decide what seems right and then fit the facts to their sense of justice. Therefore, it is important to infuse your rebuttal with common values.

People should take responsibility for their actions. A cornerstone of political campaigns, this idea has been twisted into a premise that people should be responsible for any tragedy that befalls them. The typical defense argument is: The plaintiff refuses to accept responsibility and looks to blame somebody else. We serve our clients best by admitting at the outset that the plaintiff accepts responsibility for his or her actions. But isn't it fair to expect the defendant to do the same?

Lawyers who don't sound like lawyers can be particularly persuasive on this point. Advocates who convey that they think, live, and believe like ordinary people develop a special connection with jurors. You can do this by appealing to commonsense values, perhaps citing familiar books like Robert Fulghum's All I Really Need to Know I Learned in Kindergarten. "Wisdom was not at the top of the graduate-school mountain, but there in the sandpile at Sunday School," he writes. (8)

Sometimes, you need to remind jurors that there are two kinds of greed: trying to get more than you are entitled to and trying to avoid paying all you owe. Ask them: What could be more reprehensible than a negligent defendant who steals part of a citizen's freedom, and then lies and distorts to avoid accountability? Good, decent people play by the rules of the sandbox. When they hurt somebody, they say they are sorry. They stand accountable.

Good people will come to the aid of those wrongfully injured. The American courtroom is the one place where ordinary people can stand on equal footing with the richest corporation. The man or woman who works hard, pays taxes, obeys the law, and contributes to the community presents a resume that demands justice.

In the anesthesia case brought by Mark's family, the defense argued that "it really doesn't matter what kind of man Mark was." We turned that into our affective theme:

   Defense counsel said several things during his
   closing argument, but one of them I really have
   to take exception to is when he told you that in
   looking at these issues it really isn't important
   to consider the kind of man Mark was.

   Paul writes in Galatians, "God is not
   mocked. Whatsoever you sow, so shall you
   reap." In Paul's other letters, he tells us that
   God rewards us on the basis of our works. (9)

   I grew up with those lessons. I grew up
   understanding that if you were a good person,
   if you treated people right, if you loved and
   cared for your family, if you obeyed the law, if
   you were responsible, then you deserved--you
   were entitled--to be treated fairly.

   It is said that virtue and riches seldom settle
   in one man. Mark certainly wasn't a rich
   man in material goods, but he sure brought a
   lot of riches to others.

   On the day of his surgery, Mark and his wife
   meet Dr. Crowder. Dr. Crowder .says, "I'm your
   anesthesiologist. I'll be giving you your anesthesia
   today." But she knows they will take
   Mark back behind the operating room doors,
   and she won't be there to administer the anesthesia.
   Nurse Cernosek will--a stranger,
   someone Mark has never met. A man like Mark
   deserves better than that.

   After they get Mark on his side oil the operating
   table, Nurse Cernosek runs the esophageal
   stethoscope all the way down into his
   lung. We learned, by comparing her anesthesia
   chart with the machine's memory function,
   that Mark lay on the operating table for 10
   minutes without a demonstrable heart rate
   before anyone started resuscitation. Mark
   earned better than that with the people he
   helped, those he made laugh, those he stopped
   on the highway to help.

   The defense starts coming up with their
   theories. One of them is that Mark had a bad
   heart--a diseased heart. The EKGs before and
   after the surgery are all normal: no one suggests
   he had any heart problems. The original
   autopsies don't. There's no indication of any
   heart problems.

   The defendants get a court order. They cut
   into Mark's heart and get 60 slides. They don't
   find what they need, so they go back and they
   cut in 260 more times. In the words of their
   expert, "If we just keep looking, maybe we'll
   come up with something."

   This family deserves better than that. Most
   of all, this family deserves the truth.

Perseverance and courage eventually triumph. Trials are about character. How the jury sees the plaintiff is essential. Tell jurors the client is not a whiner, a complainer, or a quitter, lie or she is not looking for a handout, only a hand up to grab the bottom rung of the ladder. Supply that, and the plaintiff will climb the rest of the way.

Courage is an element of many plaintiff stories. There is valor in parents who get on with their lives despite overwhelming grief at the loss of a child. Men and women maimed and disabled by the negligence of others continue to look for work even after they've been rejected many times.

Perseverance is required of anyone seeking civil justice. Plaintiffs not only must deal with their injuries and losses, they must withstand the abuse commonly heaped on those who seek accountability. Being a plaintiff strips a person of privacy, dignity, and contentment. Defendants search employment records, tax returns, and medical records. They may point to trivial and remote medical conditions to explain present problems. Plaintiffs face humiliating suggestions that they are troublemakers or irresponsible. Fortunately, many jurors are offended when an innocent person is libeled just became he or she had the courage to seek redress.

Witnesses can sometimes bolster this theme. The doctor who backs up the patient's contention of malpractice, despite possible retribution from the local medical community, exemplifies integrity. The coworker who risks sanction to verify that machinery was unsafe displays courage. The corporate executive who tells the truth rather than go along with a coverup shows valor. The nurse who bucks the will of the hospital and admits to dangerous medical practices is a hero.

Arguing damages

Substantial plaintiff verdicts are rarely, if ever, motivated primarily by sympathy. Jurors award substantial damages when they are offended and angered by the defense or inspired by what the plaintiff and the plaintiffs witnesses represent.

Jurors look not just for the "who did what, where, and when." They need the "why." Motivation brings coherence to the story. Just as a fair telling of the plaintiffs story requires the narrator to go back decades to fill in relevant chapters, so it is with the antagonist--the defendant. In Mark's case, two anesthesiologists' decision to create a for-profit center using CRNAs to deliver anesthesia to 7,000 patients a year, without informing them, was the seed that grew into a briar patch of carelessness and ensnared him.

In Lois's and David's cases, the practitioners' apathetic adherence to outdated science predetermined the tragic results.

The defense's motivation does not have to spring from malice. It seldom does. But there are doctors who don't spend time with their patients because they lack commitment. Corporations turn out dangerous drugs in pursuit of financial gain, while consumers bear the risk of harm. And some people are just careless because their minds are elsewhere. The antagonist's motivation doesn't have to be malicious, but it must be wrong.

Jurors will examine the plaintiffs motivation as well. He or she must be motivated by more than money. Does a widow worry about how she will care for and educate her children after her husband's wrongful death? Does a single woman sue after she is seriously injured in a car accident because of anxiety about providing for herself? Will the parents of a brain-damaged child continue to care for their son or daughter after significant damages are awarded? The plaintiff needs to make the "why" of suing acceptable and honorable to the jury.

Advocates use symbols and picturesque speech to bring meaning to the plaintiffs loss. "You don't have to wonder why no mirrors are around" captures the essence of disfigurement. "I speak for a man who can no longer speak for himself" or "Who will be with her when she is lonely?" animate the damages argument in death cases. Pain is made real when jurors are reminded that "it doesn't work eight hours a day. It doesn't check in and out. It works overtime and is always there."

But sympathy is never enough. By itself, it cannot inspire justice on either liability or damages. Everyone has seen tragedy that has no explanation. Sympathy alone can't be the moral, but a strong moral may justify the jurors' exercise of their human empathy.

Plaintiffs and their lawyers have to throw back the curtain on the defendant's apathy, indifference, incompetence, and greed. Full justice is the only cure for medical negligence. This is the moral of our stories. The desire to make things better prods jurors to act; the need to make things right for someone who lacks power inspires them to provide full compensation. This, in the end, is the goal of every plaintiff's closing argument.

Notes

(1.) Alexander v. TOPS Speciality Hosp., Ltd., 93 S.W.3d 132 (Tex. Ct. App. 2002).

(2.) Bush v. Quast, No. 94-26249 (Tex., Harris County Dist. Ct. June 1996.)

(3.) Mills v. Angel, No. 94-13852 (Tex., Harris County Dist. Ct. June 1996.)

(4.) See, e.g., Pinckard v. Dunnavant, 206 So. 2d 340, 343-44 (Ala. 1968); Ravettino v. San Diego, 160 P.2d 52, 59 (Cal. Dist. Ct. App. 1945); Locklear v. Morgan, 201 S.E.2d 163, 167 (Ga. Ct. App. 1973); Shaw v. Terminal R. R. Assoc., 344 S.W.2d 32, 36 (Mo. 1961); Cont'l Bus Sys., Inc. v. Toombs, 325 S.W.2d 153, 163 (Tex. Civ. App. 1959); see also D.E. Evins, Annotation, Propriety and Effect of Permitting Counsel Having Burden of Issues in Civil Case to Argue New Matter or Points in His Closing Summation, 93 A.L.R.2d 273 (1964).

(5.) Stephanie Jaros, What Do Jurors Think of Lawyers? INFLUENCE, Feb. 2002, at 11.

(6.) Stephen Read, Analogical Reasoning in Social Judgment: The Importance of Causal Theories, 46 J. PERSONALITY AND SOC. PSYCHOL. 14 (1984).

(7.) See 6 WIGMORE ON EVIDENCE [section]1692 (1976) and [section]1693 (Cure. Supp. 2002); Powell v. Mullins, 479 So. 2d 1120-21 (Ala. 1985); Botehlo v. Bycura, 320 S.E.2d 59 (S.C. Ct. App. 1984); AMY SINGER & PAT MALONEY, 1 TRIALS AND DELIBERATIONS: INSIDE THE JURY ROOM [section]4.07 (1992).

(8.) ROBERT FULGHUM, ALL I REALLY NEED TO KNOW I LEARNED IN KINDERGARTEN 6 (1986).

(9.) It is important to consider the audience when determining whether to cite Scripture in argument.

Jim M. Perdue Sr. and Jim M. Perdue Jr. are partners in The Perdue Law Firm in Houston.