Saturday, February 6, 2010

The Final Argument You'll Never Give

Medical malpractice cases are like a preparing for a marathon. Most take over a a year to get ready for trial. A recent one our office handled involved almost twenty depositions scattered all over the country. As the trial approaches, it becomes organized chaos. Cross and direct examinations, medical illustrations, lining up witmesses and subpoenas, exhibits, and the opening statement all must be prepared. What's more, there's always a flurry of last minute motions that you have to respond to. All this occurs at the same time when there are occasional last minute attempts to settle the case.

The crown jewel of any trial is final argument. It is the culmination and the synthesis of all the evidence. The attorney's final chance at persuasion. But any good final argument is never prepared at the end of the trial. You begin working on it before you ever file the lawsuit. You do this by getting to know the person on whose behalf the lawsuit is being filed.

But what happens in wrongful death cases, where you never get the chance to meet the victim? You have to do the next best thing. You meet with the family of the deceased, and you meet with them often. You listen to their stories about their mother or dad. It is a process like no other. It is painful, cathartic, there is laughter at all the funny and charming stories they share, and there are lots of tears. A box of Kleenex is a necessity. You go through all the photographs or videos that often yield valuable treasured moments about their loved one's life.

You store all this information in your memory bank so your clients and you can share these wonderful stories at trial. By the time the trial begins, you almost feel like you knew the person you never got to meet. More than anything else, you want your final argument to honor the memory of that person as best as you can. As much as it is delivered to the jury, it is equally a final gift to your clients.

And then, on the eve of trial, as happened in this case, it settles. No final argument. The final gift to your clients lies dormant, like an unpublished manuscript.

This most recent case involved a vibrant, selfless 78 year old wife, mother, and grandmother who died in a hospital due to a series of preventable medical errors. As I learned all about her life, and all the things she did for others--her family, her ill husband and her mother, all the neighbors she helped in so many ways, and all of her friends, one theme emerged and stuck with me: silent hero.

I intended to tell the jury that, it seems like our society is fixated on hero worship. But where do we look for our heroes? Too many of us look outward. Kids wear the latest sports jerseys with the names and numbers of athletes plastered on the back. Rock and rap stars occupy all the latest reality shows, showing off their excesses and austentacious lifestyles. We tend to idolize these "stars," and, yet, in the end, they never fail to disappoint us. All we need to do is pick the paper or turn on the TV for their latest scandals. They're like a cheap balloon. Transient and temporary. Eventually the air leaks out, or pops altogether.

Meanwhile, nestled in little corners of our local communities, there are people who, without any fame, glory, or recognition, give of themselves every day. Teaching a younger neighbor who's just moved in next door how to plant a garden, flowers, and roses. Checking in on an elderly neighbor down the street to make sure she has milk and bread and frequently fixing her TV remote because she's "electronically challenged." Showing up unannounced to a neighbor's or friend's back door with a pot of meatballs, soup, or her world famous nutrolls--just because that's who she was. And being there always for her adult children as the anchor or hub of a large, loving, close family.

These are our real heros. Old school heros with old school values. Silent heros, never seeking any limelight or recognition. These are the people our younger generations need to look up to and emulate. No expensive jersey required. Just an occasional hug is all they need.

Just a small part of what I intended to say for an argument that will never be delivered. That's OK. Now is the time for healing and looking forward, as Melville once said: "Life is best understood looking backward, but is best lived looking forward."

But I can still share some of it here. Consider it my gift to the Nutroll lady.

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