Another issue was the applicability of the emergency room standard. The jury agreed the elevated standard did not apply. We also proved gross negligence, giving the verdict a second leg to stand on if that threshold question is ever revisited on appeal.
VOIR DIRE: YOU CANNOT JUDGE A BOOK BY ITS COVER Voir dire consumed a full day in this case, but it was worth every minute. Rabun County is a small, rural, conservative North Georgia county. Our jury included an engineer, the child of a physician, a senior business executive, and other business owners. By conventional wisdom, this was a defense jury. We did not see it that way. We were not looking for ideological sympathy, rather for sophistication: jurors comfortable dealing with professionals and not reflexively deferential to physicians because of their credentials. There is a particular pathology in some jurors where they will not hold a doctor accountable because they cannot conceive of a physician making a mistake, or they have an inferiority complex about challenging an M. D. An engineer who evaluates evidence critically is a far better plaintiff ' s juror than a sympathetic retiree who will not push back on a defense expert.
In voir dire, you must speak to every single juror. Do not assume. The quiet juror in seat eleven may have the most important voice in the deliberation room so you have to interact in voir dire to assess each person.
OPENING STATEMENT: BREVITY MATTERS, BUT NOT MORE THAN SUBSTANCE I gave the longest opening of my career in this case, but the guiding principle remains: explain the case clearly even if it takes some time. Strip the opening to what the jury needs to understand, but it does not have to be everything you have learned over six years of litigation.
CROSS EXAMINATION: ARMED WITH LITERATURE, TARGETING COMMON SENSE Cross examination is everything. Defense experts are genuinely accomplished physicians who know more about medicine broadly than you do. Do not fight them on medicine broadly. Fight them on the discrete issues your case is about and fight them with the literature in hand. Our cross examinations were organized around three themes:
First: contradictions between the defense experts and the defendant doctors themselves.
Second: contradictions between the defense testimony and the authoritative medical literature.
Third: arguments that contravened basic common sense
THE FLIP CHART: REAL-TIME PROOF IN FRONT OF THE JURY I used three flip charts in this trial, as I do in every significant trial. There is no technological substitute for the analog, real-time act of writing down what a witness just admitted while the jury watches. When you score a point, write it down. If the witness does not refute it, it is golden. Unlike an exchange that passes in thirty seconds and may be forgotten by lunch, the flip chart entry stays in the room.
IN THE PROFESSION
Early in a complex trial, the jury may not yet appreciate the significance of an admission but when you go back through the charts in closing the jury recognizes every entry and remembers the moment it happened. The admission that passed with a shrug on Day 3 lands with full force on Day 10.
CLOSING ARGUMENT: PREPARE EARLY, ANCHOR TO ONE THEME Prepare closing argument early, well before trial if possible. It is the crystallization of what you must prove to win, and building it early keeps your preparation focused. The liability closing in this case was organized around one unwavering theme: the truth is simple; deceit is a complicated, tangled mess.
The damages closing was built around two video clips. The first was from the Day-in-the-Life video— one sequence in particular, Mrs. Tucker rolling her husband over in bed to wash his back, the camera catching his face, communicated what the Tuckers had lost in a way no expert testimony could match. The second was a short excerpt from Mr. Tucker ' s deposition. Because I feared that he might not live to testify at trial, I prepared a full direct examination of him at his discovery deposition:
That answer, played in the courtroom two years after his death, was one of the most powerful moments of the trial. In cases with elderly or seriously ill plaintiffs, anticipating mortality is not a pleasant exercise but it is an essential one.
A WORD ON HUBRIS: THE GIFT OF A REJECTED DEMAND This case did not have to go to trial. In 2021, we sent two $ 1 million policy limits demands. Both demands were rejected without a single counter-offer. The insurer ' s first offer of any kind came the Friday before trial began. We made those demands because David Tucker needed medical care and could not afford it. We believed the case was worth far more. The demands were an act of grace. Hubris is dangerous. For a plaintiff ' s lawyer with a client willing to go the distance, it can also be a gift. CONCLUSION David and Carol Tucker were hard-working, decent people who were rear-ended on the highway and then failed by the medical system that should have protected them. They wanted accountability and were willing to fight for it through six years of litigation, two rejected demands, and the death of one of them before trial. The $ 22 million verdict which is the largest medical malpractice verdict in Rabun County ' s history and believed to be the only plaintiff ' s verdict in a medical malpractice case in that county, was earned through exhaustive preparation, deliberate jury selection, relentless cross examination, and one simple theme. The truth won.
Matt Cook is the founder of Cook Law Group, LLC, based in Gainesville, Georgia. For 27 years he has focused exclusively on plaintiff ' s civil litigation with an emphasis on complex, serious injury and wrongful death cases ranging from trucking cases to medical malpractice, product liability and aviation claims. He can be reached at Matt @ cooklawgroup. com or 678-928-3899.
www. atlantabar. org THE ATLANTA LAWYER 17