Georgia Trial Advocate : Georgia Wrongful Death Lawyer & Attorney : Jarome Gautreaux Law Firm : Medical Malpractice, Catastrophic Personal Injury : Macon, Warner Robins, Atlanta

There has been an enormous amount of recent interest in an approach to trial advocacy that has come to be known as the "Reptile" theory.  This approach is spelled out in a book called Reptile The 2009 Manual of the Plaintiff's Revolution by Don Keenan and David Ball.   

This method or theory of trial advocacy is intended to help plaintiff's lawyers level the playing field in an age when jurors are increasingly affected by "tort reform" propaganda that portrays jury trials as lotteries and plaintiffs as people out for an unjustified quick buck.  

To counter this tort reform view, the reptile approach encourages plaintiff's lawyers to focus on the dangers posed by the defendants' conduct.  This focus on danger posed by the defendant, according to the book, excites the "reptilian" brain so that the instinct for survival influences the actions of jurors and the way they express their need for survival is a verdict against the danger - the defendant.  I can't pretend to summarize the book in its entirety here, and this is only my own summary of the basics.   The book can be purchased at reptilekeenanball. 

Criticism of the Reptile Theory   Some criticisms of the reptile theory have been forcefully advanced by Stephanie West Allen, Diane Wyzga and Jeffrey Schwartz.  Their article and several rebuttals in The Jury Expert (published by the American Society of Trial Consultants) can be found here.  Their main criticism seems to be a normative one rather than one that criticizes the theory's effectiveness in obtaining verdicts.  Their criticism is summarized this way by the authors:  "to equate men and women serving on juries as reactive sub-mammals is both offensive and objectionable."  Instead, the authors appeal to Atticus Finch as a model for lawyers, and urge lawyers to reject any "single story" and especially the single story of the reptile, since in their view it does not treat jurors as rational, autonomous beings. 

I have not yet decided what I think of these critcisms by Allen, Schwartz and Wyzga.  It does seem that the reptile ideas can be used in the service of a rational story that focuses on the real danger presented by a defendant rather than a simple by-pass of the rational mind.  So I'm not yet convinced that the criticisms are not at times attacks on a straw man.  But the provocative title of the Keenan and Ball book, as well as what I see as the lack of solid science behind the reptile theory, does invite thoughtful criticism, and that is certainly what Allen, Schwartz and Wyzga have provided.

I encourage all students of trial advocacy to read about this debate and I welcome comments about it. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

I have not been posting new entries for several months.   The summer months flew by, but I had a great time with my family, and even got to enjoy an oil-free trip to the Gulf Coast.  

I plan to keep the blog more current from now on.  The blog is devoted to safety issues and trial advocacy.  These two topics are tied together because I see what I do as a trial lawyer as furthering the goal of making all of us a little more safe.  Our court system should be used to hold wrongdoers responsible and to make everyone act in a more responsible and safe way.

Safety was definitely on my mind last week as I purchased a new vehicle.  My overriding concern was to buy a vehicle that would protect my family if we were in a severe collision.  Since we live near I-75, a major highway,  with plenty of large truck traffic, I wanted a vehicle that would protect us if we were in a wreck at highway speeds. 

Unfortunately, this weekend I read of another serious wreck involving a large truck on I-75 in Dooly County.  You can read about the wreck in the article by Linda Morris in the Macon Telegraph.   Please use this link to read about safety ratings of vehicles by the Insurance Institute for Highway Safety.  You can read excellent articles about truck safety, and other topics on safety at the website for the Advocates for Highway and Auto Safety. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Medical Malpractice Payments Fall       Many special interests want to close the courthouse doors to Georgia citizens who suffer terrible injuries or death because of the negligence of healthcare personnel.  The special interests complain about "frivolous lawsuits" and the alleged "crisis" of medical malpractice lawsuits.  When you peek behind the surface, however, the truth is that we are suffering from a problem with people being killed or injured by medical errors rather than a problem with lawsuits.  For example, as this article by Chelsey Ledue shows, the number of payments related to malpractice claims fell in 2009, and the amount paid is at its lowest level since 1992.

The Real Problem:  Failure to Protect Patients    In 1999, the Institute of Medicine found that 44,000-98,000 people die every year due to preventable medical errors!  In 2004, the problem was worse, and according to the report by Health Grades, medical errors would be ranked as the 6th leading cause of death in the United States.   And in 2009, it is estimated by the Hearst Newspapers that approximately 200,000 people would die due to medical errors and hospital infections!  These are frightening statistics that don't  get the attention they deserve.  

    Please take a moment to review the report by Public Citizen that shows the real problem is too many Americans die needlessly from medical errors.  Thus, we should focus on keeping patients safe and holding hospitals and medical personnel accountable when they needlessly harm patients.  The right to trial by jury is essential to hold wrongdoers accountable.  We should not allow special interests groups to take away this right.   

• Email This
• Print
• Comments (1)
• Trackbacks
• Share Link

Georgia's Legislature and Limits on Juries' Power

     In 2005, the Georgia legislature placed "caps" on the amount of non-economic damages that an injured Georgia citizen could obtain from juries in medical malpractice cases.  In some cases, that limit was as low as $350,000.  This law had the effect of taking power away from jurors in Georgia and giving the power to the special interests that like nothing less than ordinary citizens getting a fair day in court at the hands of 12 jurors.  

Mrs. Nestlehutt's Injuries and Her Challenge of the Caps

   Mrs. Betty Nestlehutt, age 71, worked in a real estate business with her husband, and she sought some help from a plastic surgeon, who recommended a facelift and a laser resurfacing.  These procedures being performed together posed the risk of imparing the blood supply to the face.  Nonetheless, the procedures were performed and Mrs. Nestlehutt suffered impaired blood supply to her face and was left with large gaping wounds on her face.  The video below shows the damages to Mrs. Nestlehutt.

   The video below shows these damages and illustrates why the legislature's arbitrary "one-size-fits-all" approach is manifestly unfair to people like Mrs. Nestlehutt.

WE THE PEOPLE from Georgia Justice on Vimeo.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

What is Causing the "Sudden Acceleration" problem?

     The initial reports about the Toyota sudden acceleration problem focused on gas pedals and floor mats.  Now, in response to concerns that these "fixes" do not fix the problem, Congress is continuing to investigate.  According to an article by Joseph B. White and Kate Linebaugh in the Wall Street Journal, Toyota officials are continuing to investigate the cause of the problem.  So the short answer is that no one really seems to know the precise cause of the problem.  Even Toyota officials say they are continuing to investigate the problem.

What To Do If Your Vehicle Suddenly Accelerates

    So while the cause of this problem is being investigated, what should you do if you find yourself in a situation where your vehicle suddenly accelerates?  Generally, the advice is to put the car in neutral, put on the brakes, and turn off the engine.  A more detailed explanation can be found at the Consumer Reports blog on how to protect yourself in this situation.  A video of how to react can be found on YouTube as well.   Please take a moment to review these and practice reacting to a sudden acceleration in your vehicle. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Many individuals and familes affected by a serious injury in an automobile or tractor-trailer wreck in Georgia do not have insurance coverages to help them through the tough financial times following their injury.   There are coverages that many folks don't know about that can help with this problem.

Medical Payments Coverage One of these coverages is called "Medical Payments" coverage. This is very valuable coverage to seriously injured people because it pays medical bills if you are injured in an automobile wreck.  Unlike your health insurance, Med Pay coverage often includes no deductible or co-pay, so it will pay more of your bills after a wreck than your health insurance would pay.  So it can save injured people in Georgia a good bit of money after a wreck, helping them get through the tough times after a wreck when the injured person may not be able to work.

Uninsured Motorist Coverage.  Another valuable coverage is called Uninsured Motorist Coverage.  This provides insurance coverage for you if another driver causes a wreck in which you are injured.  Unfortuantely, too many folks do not have adequate liability insurance to provide coverage for those they may injure in a wreck, so we should all consider purchasing uninsured motorist coverage to protect ourselves against those who do not carry enough liabilty insurance. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Many of the most talented trial lawyers I know have a passion for books, including books in areas outside the traditional area of trial advocacy.   I've met trial lawyers who loved southern fiction, and one who enjoyed Russian novels, and others who read biographies and history.  In an upcoming blog post, I hope to initiate a dialogue on great books that others have enjoyed and can recommend.

But today's post is more practical.  Many good trial advocacy books have come out in the last few years. 

The following are some of my favorites:

• The book: David Ball's Reptile
  
  • Why I recommend it:  It's based on current research and offers a comprehensive method of approaching cases and combatting tort reform.
• The book: Judge Ralph Adam Fine's How to Win Trial Manual
  
  • Why I recommend it:  Practical advice on trial tactics.  Takes issue with some of the conventional trial advocacy advice.  Good examples.
• The book:  Friedman and Malone's Rules of the Road
  • Why I recommend it:  It's focus on establishing clear rules that defendants must agree with, and using those rules in discovery and trial.
• The book:  Jim Perdue's Winning With Stories. 
  • Why I recommend it:  Helps lawyers use stories to tap into universal experience and bring their cases to life. Good examples from trials.

There are a lot of good trial advocacy books out there, and I'd like to hear recommendations from any readers.

• Email This
• Print
• Comments (1)
• Trackbacks
• Share Link

In November, we took a step in the right direction. The House of Representatives passed the health care bill, "The Affordable Health Care for America Act" or  HR 3962.  This is the most significant piece of health care legislation to pass the House in the last 40 years, according to CNN's coverage.

In our work representing persons who have suffered serious injuries as a result of another party's negligence or carelessness, one of the problems we often encounter is that the injured person lacks insurance coverage to pay their medical bills.  This is especially hard on families who have lost the person who provided the main source of income due to their injuries.

Insurance companies sometimes refuse to pay promptly for injuries arising from medical malpractice, trucking wrecks, car wrecks or other incidents.  This delay causes injured persons to have to live on little or no income while their medical bills continue to accumulate.  This can make it difficult for injured people to obtain full compensation for the injuries because they may be forced to accept lower settlement amounts simply due to their need for money to pay their mounting medical bills. 

Hopefully some version of the health care bill will become law so injuried folks avoid this problem.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Juries are the heart of our civil justice system.   And contrary to what you hear from insurance companies and those affiliated with them, juries usually reach the right result.   Jurors have an uncanny ability to see the truth and get to the heart of a case.   Lawyers who think they can fool a group of 12 jurors need to re-think their strategies.  

So it has always amazed me that insurance companies would manage to convince a significant portion of the public that juries can't be trusted to reach the right result in medical malpractice cases.  We hear claims of "frivolous lawsuits" often by the medical industry and insurance companies.  It's as if the medical industry thinks it is exempt from justice and that they are above the law, immune from the scrutiny of juries and our courts.  

An excellent and balanced look at these reform proposals has come from an unlikely source - a physician.  In a very well documented Salon article, I'm a Doctor. So Sue Me. No, Really, written by Dr. Rahul K. Parikh examines the claims by the insurance industry and other medical groups that medical malpractice suits are the cause of high medical costs.  In Parikh's article, he reveals the truth behind the inflated claims of some lobbying groups and insurance companies that medical malpractice suits cause high insurance premiums.  He cites numerous government studies in reaching his conclusion that high insurance premiums are not caused by medical malpractice lawsuits. 

For example,

According to the Congressional Budget Office, nationally, between the mid-1990s to the mid-2000s, the frequency of malpractice suits per capita remained stable at about 15 claims per 100 physicians per year. Another report (PDF), from the National Center for State Courts, actually shows that the number of cases between 1996 and 2006 dropped 8 percent.

He also makes the point that patient safety seems to get lost in all this discussion of closing the doors of the courthouse to people injured by medical malpractice.   Instead of pushing baseless reforms, he concludes that we should focus on how to make our nation's medical system safer for all patients.

A wonderful article.  

Image: Parikh's website

• Email This
• Print
• Comments
• Trackbacks
• Share Link