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Good witness prep can improve odds
When defense attorney James J. Nosich, JD, of McGrane Nosich in Coral Gables, FL, was faced with a seemingly unwinnable case of a quadruple amputee alleging failure to diagnose, he didn't hold out much hope of his client being found not liable. But he vowed to fight, and the defense strategy began with the jury selection, trying to select jurors who could put sympathy aside and concentrate on the facts of the case.
"That effort to redirect them from sympathy to the medicine was started in jury selection and continued all the way through the trial and to closing arguments," Nosich says. "At the end, they had to face the plaintiff, who was crying and who obviously needed money. But in the end, they gave her zero dollars, which must have been tough for them."
The plaintiff had asked for $75 million in the closing argument. Nosich says he and his colleague were able to show the jury that emergency department (ED) patients often have underlying medical conditions that complicate their care that cannot be instantly detected or cured by even the best physicians. Nosich spent time explaining the realities of the typical ED, contrasting it with the idealized expectations set forth by the plaintiff's attorney.
"I call that one 'the hospital located in Lawyerland,'" he says. "Plaintiffs' attorneys always think that everything can happen in seconds or minutes and that decisions are always 100% right. But we presented a case that showed you can't demand that the defendants perform as if they were in a hospital in Lawyerland."
Defendant made a good impression
Nosich and Ganz also benefitted from having a physician defendant who made a good impression on the jury.
"I have a philosophy that, even if the physician is wrong, if I can show that she is compassionate, and caring, and smart, and the jury would like to have her as the physician for their own family members. I can win the case every time," he says.
Nosich also attributes part of the win to the physician being thoroughly prepared for deposition and trial testimony. He says he and his team spent nearly 100 hours preparing the physician by going over the facts of the case, presenting sample questions, and coaching her on how to respond to aggressive manipulation by the plaintiff's attorney.
"It's not to fool the jury but to make her aware of the kind of trick questions that she would likely hear, the ways they would try to trip her up, and the kind of mocking that is intended to get under her skin and make her say something she shouldn't," Nosich says. "We used some extraordinary preparation to make sure she could remain composed and show her true self in court, which is the calm, compassionate, caring person that she is at work in the ED."
For more information on the case, contact:
Marc P. Ganz, JD, McGrane, Nosich & Ganz, PA, Coral Gables, FL. Telephone: (305) 442-4800. E-mail: email@example.com.
James J. Nosich, JD, McGrane, Nosich & Ganz, PA, Coral Gables, FL. Telephone: (305) 442-4800. E-mail: firstname.lastname@example.org.