Justinian Lane

Offensive Jury Argument By Defense Counsel

Lowell Steiger wrote about a malpractice case in which the plaintiff lost, possibly because of highly improper closing arguments by the defense counsel.  This case is unusual because the plaintiff's appeal was granted and will receive a new trial.  Here is the portion of the closing argument that caused the reversal:

Defense Counsel: I'm going to touch on in-tentional infliction of emotional distress for a moment. This claim troubles me, not because it has any merit but I don't know Dr. Looby person-ally. I know him professionally from having as-sociated with him through this trial. I don't think he even knows this but he delivered my second child. I'm sure he doesn't remember it. But he is a quiet, professional person. And to have these ac-cusations made against him troubles me. Why is the claim being made? You know what this type of claim is usually reserved for, this intentional infliction? If I have just so much hate for another person that I call them and tell them that their child just got killed in a motor vehicle accident.

Plaintiff's Counsel: Your Honor, I'm going to object. It's highly improper. Counsel is testifying about the basis for a cause of action. His personal opinion. Improper personalization of the evi-dence. It's just designed to inflame the jury and has nothing to do with the facts or the evidence in this case.

Court: Well, overruled. I'll allow it.

Defense Counsel: As I say, it's reserved for people that vindictively want to hurt somebody else. Call them up and say your child just got run over and is dead and society doesn't tolerate that. That's where this comes from.

So, what's it doing in this law suit? Well, let's try to get some punitive damages. I mean, if this is the Lotto or Powerball or whatever they call it, let's really roll the dice big. And how do we do that? We can't do that with a medical malpractice lawsuit. We have to say that Dr. Looby intention-ally did something. So, let's see how we can weave this into intentional misconduct, then we can put in his wage reports. And not only that, Sioux Valley, a non-profit corporation that's owned by all of us. Let's show their balance sheet and--
Plaintiff's Counsel: I object to that, Your Honor. Sioux Valley Hospital is not a publicly owned corporation. That is inappropriate, inaccu-rate and it is an outrageous statement. It's a pri-vate corporation.

Court: Well, it's argument. I'll allow Defense Counsel to make his argument.

Defense Counsel: If that's an outrageous statement, I probably committed some kind of -
But, in any event, that's all beside the point but why do you do that? Well, let's show some real money and then go after it. We got sympathy on the one end and now let's punish him by show-ing we have a doctor who has been successful with his life and he and his wife own some assets as he approaches retirement and let's show them Sioux Valley Clinic. Yeah, that's the ticket. Now we are on the way. Powerball here we come.

Source: Los Angeles Personal Injury Law Blog

See, tort "reform" works.  First thing you do is tell everyone there's a litigation crisis and everyone wants to play the lawsuit lottery.  Then, you have defense lawyers work in such great phrases as "Powerball here we come" into the closing argument.  Finally, you sit back and see insurer profits soar because they no longer have to worry about jury verdicts.

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Posted at 5:00 PM, Apr 25, 2007 in Medical Malpractice
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From the 2003 decision: "...the comments of defense counsel in final argument produced some effect upon the verdict and harmed the substantial rights of the plaintiff."

Not a scintilla of evidence supports that assertion by the pro-plaintiff biases judges. As to casting aspersions on the judicial system, well, the judicial system is an out of control lawyer scam serving no intended public purpose except the seeking of the rent by a criminal cult enterprise. The judicial system is in utter failure in every goal of every subject of the law.

What was the result on remand? I have no idea. I bet it was a settlement cheaper than the cost of the retrial. I do not appreciate the trickiness of this lawyer using excerpts from a case from 4 years ago, in a remote state to justify the outrages of his profession, where nearly every case has no merit and serves to extort money from innocent defendants in a biased, pro-litigation, airtight rigged system with biased lawyers on the bench and no recourse to pierce self-dealt immunities.

If the remand resulted in the same defense verdict, the appellate judges should pay twice the cost of both sides for the second trial, out of personal funds not from the tax payers. Their homes should be sold at auction to make the defendant whole. It is they who satisfy the elements of intentional infliction of emotional distress inflicted on the doctor. A trial of these cult criminals should be conducted to see how much compensation they owe the doctor, and how much is enough in exemplary damages.

Posted by: Supremacy Claus | April 25, 2007 6:34 PM

The claim for intentional infliction of emotional distress of Schoon stemmed from unspecified comments made to her by defendant Looby.

This automatically infers an improper purpose to the negligence case. It presumptively implies the negligence claims were made out of hurt feelings, animus, and in retaliation for remarks.

In his place, if I were the defendant, I would have countersued the plaintiff for abuse of process on the negligence claims.

I also would have filed numerous ethics complaints against plaintiff lawyer and the biased, out of control appellate judges. I would have sought to enjoin them in Federal court for violating procedural due process rights established by the Supreme Court, and their failure to recuse themselves as doctor hater lawyers.

Posted by: Supremacy Claus | April 25, 2007 6:42 PM

Is this not an example of the of the present business model of med-mal legal practice?

How it was explained to me is that the business model is like the tv show "Deal or No Deal". There is a big dollar amount on the board (Big jury settlement) it is very hard to get as most cases will never even get to that stage. The insurance carrier is the banker. They look at the odds of the big award and the costs involved in the case to fight and make offers. The client will always want the big money, the attorney wants the client to play until they reach the part wherethe odds of winning are less than what was already spent (that is to say, the have optimised what they think they can get minus expenses). The big difference between the TV show and med mal law practice is you start the game playing with your attorneys money.

The effect of caps is to lower the big number at the top of the board, which will have the effect of changing the whole ratio of what the banker (insurance carriers will pay.) This is why some advocate caps, remember that the vast majority of med mal cases never even go to juries. The argument with caps is purely economic.

Posted by: Chris | April 26, 2007 9:03 AM

The scales of justice can be rigged for anyone to fail. Anyone can be convicted when fraudulent / false / corrupt / planted evidence is given to a jury to consider/instructed . That is fact. And the public fair trial can be a secret trial so that as soon as evidence is spoken by a prosecution witness that no crime occurred a judge can call for a conference in the hallway with both attorneys and court reporter to delete that evidence from the record. That is fact.

Posted by: MOLINA | May 2, 2007 4:07 AM

Prosecution witness evidence that confirmed your innocence can be deleted/altered/tampered and obstructed immediately in a secret conference in the hallway toward judges chambers . Tampering with evidence.

Posted by: MOLINA | May 6, 2007 5:34 AM