Jim Mchaleny’s most recent column for the ABA is quite a good one. I first noticed it over at WAC? Here’s his example of a reasonable argument (though do go read the whole thing):

“I like the idea of reasonable arguments,” said Barbara, “but give me a ‘for instance.’ ”

“Sure,” said Angus. “Say you represent the plaintiff in a medical-malpractice case involving a young woman who was in a minor automobile accident in a shopping center parking lot. Her car wasn’t going very fast, but she wasn’t wearing her seat belt.

“By coincidence, she had a doctor’s appointment that afternoon because of a sinus infection. While she was there, she happened to mention that she had been in a little fender-bender that morning and was feeling some minor physical discomfort. Had he pursued it, there were some tests the doctor could’ve done that might have alerted him to the possibility of a ruptured spleen—something a doctor should consider if a patient has had a blunt trauma to the abdomen.

“But he didn’t think it was serious enough to check any further. He gave her antibiotics for her sinus infection and some painkillers for muscular pain and sent her home—where she died about eight hours later. She bled to death from a ruptured spleen.

“You represent her husband in this case for wrongful death. Never mind right now about the exact medical details. Your theory is that the doctor missed making the right diagnosis. Your expert says the doctor should have run those tests. The doctor’s expert, on the other hand, insists the tests weren’t indicated.

“So how do you handle the case?” said Angus. “How do you talk about what the doctor did? Do you hammer him for gross negligence? Do you try for punitive damages if the rules let you? Do you ask the jury to send a message to the medical community that we are entitled to a higher standard of medical care than that? Do you tell the jury he killed this young woman just as surely as if he had watched the blood pour out of her veins and did nothing to stop it?”

“Works for me,” said Myra.

“I don’t know,” said Barbara. “Seems to me you’d be telling the jurors they have to hate the doctor.”

“Right,” said Angus. “And if they don’t hate the doctor—if they like him—they may have a hard time going along with you when you talk that way. You need a reasonable argument that will take some of the magic out of being a doctor, that will put him on the same footing as everybody else. That’s what the ‘oil change argument’ was designed to do. It goes like this:

“ ‘Martin Collins is a good doctor. He cares for his patients and he tries to do a good job. You know that from having listened to him testify in this case. But he made a mistake. He missed an important diagnosis. One he should have made.

“ ‘That doesn’t make him an evil man. He didn’t want to hurt anyone. He just made a mistake. But the mistake he made took the life of a young woman. So now it’s your job—and it isn’t an easy one—to tell him that he is responsible for what he did.

“ ‘How is this going to affect Dr. Collins?

“ ‘Suppose you took your car to a gas station to have the oil changed and the chassis lubed. And because something was wrong with the oil pressure gauge, you asked them to see if they could fix that, too.

“ ‘You like this gas station. You’ve been going there for years. It’s right in the neighborhood, and a lot of your friends take their cars there, too. When you pick up your car, they tell you they changed the oil, but they had to order a part for the oil pressure gauge so they won’t be able to fix it until next week.

“ ‘Now what happened was, they made a mistake. They drained the oil, put on a new filter and lubricated the chassis. But they forgot to put new oil in the engine. And before you got halfway to work, your car stopped dead. The engine was frozen solid—ruined—because there wasn’t any oil in the crankcase.

“ ‘They made a mistake. They’re responsible for what they did. And it’s their obligation to compensate you for the loss they created. It’s still a good gas station. People still take their cars there. That hasn’t changed because they had to take responsibility for what they did.’ “

While the above wouldn’t work in all situations, it’s a nice tool for the tool kit. Sometimes you need the whip, sometimes you need the apple. Though I would imagine that building trust and rapport with a jury through appearing reasonable and understanding is probably a better strategy than fire and brimstone most of the time.


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