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OPENING STATEMENT DEMONSTRATION DISSECTION

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					        “OPENING STATEMENT:
DEMONSTRATION, DISSECTION, EXPLANATION”




            JACK E. MCGEHEE
            McGehee     Wachsman
        1225 North Loop West, Suite 810
             Houston, Texas 77008
             jmcgehee@lawtx.com




               State Bar of Texas
            ND
         22 ANNUAL ADVANCED
      PERSONAL INJURY LAW COURSE
           July 12-14, 2006 - Dallas
         August 2-4, 2006 - San Antonio
         August 23-25, 2006 - Houston

                 CHAPTER 11
                                    JACK E. MCGEHEE

                                  McGehee Wachsman
                                1225 N. Loop West, Suite 810
                                    Houston, TX 77008
                                        713-864-4000
                                     texlaw@lawtx.com

        Jack is the senior partner for the Houston, Texas firm, McGEHEE            WACHSMAN
responsible for trying brain damage and commercial cases for individuals and large and small
companies throughout the country. His trial experience includes 304 personal verdicts. He
appeared on national television on ABC News, Prime Time Live which focused on the medical
malpractice crisis and on ABC’s 20/20 for Barbara Walter’s interest in one of the firm’s class
action cases. Jack is licensed to practice before the United States Supreme Court and New York.

       Before coming to Houston, Jack was a lead medical malpractice trial attorney with the
Pentagon in Washington, DC, personally responsible for a docket of over $1 billion against
Army doctors and hospitals. He traveled throughout the country representing the United States
in medical malpractice cases filed in Federal District Court.

       He is BOARD CERTIFIED by the Texas Board of Legal Specialization in Personal
Injury Trial Law, the American Board of Professional Liability Attorneys as a Diplomate, and
the National Board of Trial Advocacy as a Civil Trial Specialist.

POSITIONS HELD IN PROFESSIONAL ORGANIZATIONS include: Past President,
Texas Trial Lawyers Association; Advocate, American Board of Trial Advocates; Past President,
Houston Trial Lawyers’ Foundation; Past President and Past Vice President, Houston Trial
Lawyers' Association; Past President, Texas Medical Legal Society; Past President and Vice
President, Houston Medical Legal Society; Past TTLA Executive Committee member,
Membership Chair, Legislative Committee Chairman, and CLE Committee Chair; Fellow, Texas
Bar Foundation; Founding Director, Houston Trial Lawyers' Foundation; American Board of
Professional Liability Attorneys, Board of Governors; State Bar of Texas, Past CLE Vice Chair,
PJC Committee and Personal Injury Trial Manual Committee; Trial Lawyers for Public Justice;
Million-Dollar Advocates Forum; Fellow, American Bar Foundation. Former Adjunct Professor,
University of Houston Law School, Houston, Texas, teaching Civil Trial Advocacy and Former
Visiting Professor, Emory Law School, Atlanta, Georgia, for their Annual Trial Techniques
Institute and Fellow, American Bar Foundation.

       Jack has written a book titled, “The Plaintiff’s Case: From Voir Dire to Verdict”. All
book proceeds have been donated to the Texas Trial Lawyers Association. He has written over
250 speeches and Publications. His Publications appear in journals such as; New England
Journal of Medicine, Trial Diplomacy Journal Special Edition, and The Texas Evidence
Reporter. Jack was named one of Houston’s Top Lawyers in 2005 by Texas Magazine.
“Opening Statement: Demonstration, Dissection, Explanation”                                                                                               Chapter 11

                                                                 TABLE OF CONTENTS

I.    INTRODUCTION................................................................................................................................................... 1
      A. Qualities Of A Good Opening Statement ........................................................................................................ 1
         1. A time for FACTS or a time for PERSUASION? ................................................................................... 1
         2. What it looks like..................................................................................................................................... 2
              a) The mechanics of opening ............................................................................................................... 2
              b) Style--3 way conversation. .............................................................................................................. 2
              c) Persuade with detail ......................................................................................................................... 2
              d) Voice inflections to transfer feelings ............................................................................................... 3
         3. Principals of opening ............................................................................................................................... 3
              a) Hidden themes ................................................................................................................................. 3
              b) Expose their overstatements ............................................................................................................ 4
              c) Form over substance ........................................................................................................................ 4
              d) Show AND tell during opening ....................................................................................................... 5
              e) The case theme................................................................................................................................. 5
         4. The painful process of organizing the opening........................................................................................ 5
      B. What’s Permissible And What’s Not In Opening Statement........................................................................... 7
      C. Common Objections During Opening Statement ........................................................................................... 7
      D. Outline Of An Opening Statement .................................................................................................................. 7
      E. Opening Statement Shell ................................................................................................................................. 8
         1. Engage ..................................................................................................................................................... 8
         2. 2d facts..................................................................................................................................................... 8
         3. Introduce fact witnesses........................................................................................................................... 8
         4. Case theories............................................................................................................................................ 8
              a) Clinical judgment vs. departure from the standard of care .............................................................. 8
              b) Differential diagnosis....................................................................................................................... 9
         5. Experts..................................................................................................................................................... 9
         6. Sympathy ............................................................................................................................................... 10
         7. Damages and the "M" word................................................................................................................... 10
         8. Defenses................................................................................................................................................. 11
         9. Ending.................................................................................................................................................... 11
      F. Example Specimens For Use In Trial............................................................................................................ 11
         1. Husband’s lost spouse ........................................................................................................................... 11
      G. Example Opening Statements........................................................................................................................ 12
         1. Medical malpractice opening statement ................................................................................................ 12
         2. Child death case..................................................................................................................................... 14
         3. Ad litem opening ................................................................................................................................... 15

II.   CONCLUSION ..................................................................................................................................................... 15




                                                                                    i
“Opening Statement: Demonstration, Dissection, Explanation”                                                         Chapter 11

OPENING STATEMENT                                                 been written on the distinction. Suffice it to say that if
                                                                  we don't use voir dire to open, we’ve wasted a
By: Jack E. McGehee                                               valuable opportunity. They will. The first to tell the
                                                                  story gets the edge.
I.    INTRODUCTION                                                     We should voir dire with the story line of our
      Apart from closing argument, no other area of               case. In this first opening, we should tell the story for
litigation has received the widespread scrutiny of                three or four minutes to set the stage for the crucial
commentators and pundits than that of opening                     give and take of the jury selection (or more accurately,
statement. But their teachings frequently miss the                the juror exclusion) process.          Unlike opening
point. In actuality, while the rock of the opening                statement, it is voir dire when the jury is introduced to
statement is chiseled long before the trial begins, the           our case...
polish is applied moments before it is delivered. The
cornerstone of opening statement is flexibility. It               Before we begin asking questions to see if you
must change shapes after we see the enemy’s attack.               should sit in judgment in this case, I'd like to
We should never be so cavalier to think we know how               briefly tell you about our case. For the next 4
the opponent will fight. We will hear for the first time          minutes we'll share with you why we are here
their theory against our case during voir dire. While             today. This is little Tiffany. On May 8, 1992, she
lots of theories may have been developed during                   was sitting up unassisted, smiling, laughing,
discovery, the only one that counts is the one                    forming words, and looking to take her first steps.
delivered to the jury. And what’s frightening to the              Her parents shared the hopes and dreams of all of
weak hearted, sometimes the one delivered to the jury             us who have experienced the joy of their first child,
was NEVER developed during discovery.                             born healthy, vibrant and full of life. The next day
      Opening statement is the first opportunity to               Tiffany began breathing fast. She developed
respond to their theory of the case. And just like voir           numerous symptoms of pneumonia and was taken
dire, the clock is ticking fast. We must sprint to                to the emergency room where she was seen three
capture a favorable first impression from the jury. In            times by the defendant over a period of four days.
the minutes separating the end of voir dire and the               On each hospital presentation, Tiffany's condition
beginning of Opening, we must readjust, re-focus, and             had worsened, her symptoms more acute, yet the
change our approach to line up directly against the               defendant failed to take the necessary medical
enemy’s best defense.                                             action to order a chest X-ray, initiate antibiotic
      How it is done, what rules govern it, and some              therapy and provide breathing support. On May
suggestions about what it looks like is the subject of            11, Tiffany's frail lungs were so loaded with the
this chapter.                                                     ravages of pneumonia that she went into what the
                                                                  doctors call respiratory distress. Her brain was
A. Qualities Of A Good Opening Statement                          deprived of life sustaining oxygen for so long that
1. A time for FACTS or a time for PERSUASION?                     she suffered profound and irreversible brain
      We learned in law school that the opening                   damage. Unlike May 8, 1992, today, she cannot sit
statement is not argument and should be employed to               up unassisted, she hasn't smiled in 2 years, she
provide the jury with a road map or summary of the                doesn't laugh or form words, and she has forgotten
evidence we plan to adduce during the trial. This may             about her first steps. The hopes and dreams of this
have been true back when our professors studied the               baby and her young parents were shattered. They
profession of persuasion, but this approach has no                come to you for help.
place in today's contested environs. If we don’t seize
this opportunity to persuade, we will lose the initiative              So when we finally stand up for opening
and not fully exploit this critical stage of the process.         statement, we are not forced to spend time acquainting
Jurors make up their minds very quickly. We must                  the jury with our side of the case. We have told the
explode with our best arguments and positions at the              story first and now we are free to fill in the blanks and
outset and press the attack to move the jury to accept            begin concentrating on responding head on to their
and embrace our claim or defense.                                 defenses.
      Opening statement is a misnomer. It's not "the"
or "an" OPENING, it is the Second Opening and more
importantly, it's a rebuttal to their voir dire. A lot has

                                                        McGehee -1

                                           Jack E. McGehee, McGehee     Wachsman
           1225 North Loop West, Ste. 810, Houston, TX 77008, 713-864-4000, fax: 713-868-9393, jmcgehee@lawtx.com
“Opening Statement: Demonstration, Dissection, Explanation”                                                         Chapter 11

2.    What it looks like                                          And we should treat the jury like they are
a)    The mechanics of opening                                    participating in our conversations to follow.
      No one is able to fully describe the properties of
a perfect opening statement. While several have tried,            c)   Persuade with detail
their ideas are worth learning...                                      Delivering an emotional opening statement and
                                                                  captivating everyone's attention doesn't mean the
Be absolutely truthful.                                           delivery must contain argument, or be loud and
Never overstate anything.                                         animated. Sure, emotion is generated through stories
Be yourself.                                                      and analogies. But emotion is also available to us
Do not read.                                                      during opening. We create emotion during opening
Use simple and positive language.                                 with DETAIL. Simple detail makes the jury see the
Move around the courtroom for emphasis.                           story. They live it. They feel it.
Control the courtroom.
Use visuals and exhibits.                                              The baby presented, the doctor placed the
Use present tense.                                                forceps around Timmy's head, squeezed them
Consider telling the story from point of view of bad              tight, adjusted his grip and pulled and twisted until
        guy, not good guy. Otherwise, the jury will               he met resistance. Timmy stopped, his shoulder
        think of thousands of excuses for the                     became stuck on his mother's pelvic bone. But
        behavior.                                                 Doctor defendant continued to twist Timmy's head.
Don’t repeat “the evidence will show...”                          Timmy's 1st brachial plexus nerve snapped away
Fully explain every negative in the case.                         from his spinal column. When Doctor defendant
Diffuse opponent’s strength.                                      again adjusted the steel forceps, the heel of the
Make the client a human.                                          instrument pressed down on Timmy's left eye
Communicate approachability.                                      socket, pushing his eye into the forceps, destroying
Repeat the theme using sound bites...                             any hopes of future vision.           To overcome
        This is a case about cheating.                            resistance, the doctor pulled harder. Timmy's C1
        This is a case about broken promises.                     and C2 cervical vertebrae cracked, breaking
        This is a case about police brutality.                    Timmy's neck in 2 places. Doctor defendant
        Revenge. That's what this case is all about.              reversed his motion and moved the broken
        This case is about being responsible for                  vertebra chip across Timmy's 2d brachial plexus
        your own conduct.                                         nerve, cutting it away from his spinal cord.
Make early eye contact--even before we speak.
End the story with the filing of a lawsuit and the                     There is nothing loud, or animated about these
        jury’s purpose today.        “faced with a                words. What made them emotional was their graphic
        lifetime of medical bills, they had no                    detail.
        recourse by to right the wrong.”                               Sometimes, the greater the detail, the greater the
                                                                  concentration level of the jury.
The number one rule for style is: BE YOURSELF.                         Again, for emotion, use detail, not flowery
                                                                  adjectives or flamboyance...
b)    Style--3 way conversation.
      The perfect opening statement sounds just like
we sound when we talk informally to a close friend
about a cause that may change our life. It’s not a style
that we learn from the great trial lawyers. Certainly,
it’s not learned in a book. It’s our own and no one can
take it from us.
      We should talk to the jurors as our friends and set
up the mood for the remainder of the trial. The mood
should make the jurors feel as though they are the
third party in a three-way conversation while we ask
questions of a witness. We set up this mood during
opening. We should tell the story from our heart.

                                                        McGehee -2

                                           Jack E. McGehee, McGehee     Wachsman
           1225 North Loop West, Ste. 810, Houston, TX 77008, 713-864-4000, fax: 713-868-9393, jmcgehee@lawtx.com
“Opening Statement: Demonstration, Dissection, Explanation”                                                         Chapter 11

The evidence will show that when the defendant                    When we talk about the injury, use...
       approached the intersection, he claims he                     slower pace
       never saw little Timmy in the street.                         lower tone
When his car came within 6 inches of Timmy's                         extremes in vocal patterns
       waste he claims he never saw little Timmy                     lower the eyes
       in the street.                                                slower body movements
When his car first made contact with Timmy's left                    slower breathing patterns
       femur he claims he never saw little Timmy                     and ... dramatic pauses
       in the street.
When his car cracked Timmy's femur and made                       When we talk about the REASONS for the injury,
       contact with his hip he claims he never saw                we’re angry and we should use...
       little Timmy in the street.                                    faster rate
When his car broke his hip and slammed his head                       higher pitch
       against his hood he claims he never saw                        louder volume
       little Timmy in the street.                                    direct eye contact
When his head made a 3/4-inch dent in his hood,                       upper body gestures
       less than 3 feet from the defendant's eyes he                  decisive movements
       claims he never saw little Timmy in the                        and ... dramatic pauses
       street.
When his car catapulted Timmy's body 50 feet
                                                                  When we talk about factual information, we
       through the air he claims he never saw little
                                                                     keep eyes level
       Timmy in the street.
                                                                     use even breathing
When Timmy lay on the ground with a cracked
                                                                     use moderate rate
       skull in a pool of over 2 quarts of blood he
                                                                     use no extreme tones
       claims he never saw little Timmy in the
                                                                     and use NO dramatic pauses
       street.

Only after he got out of the car, did the defendant               3.   Principals of opening
       finally see what he had done. AT LEAST                     a)   Hidden themes
                                                                       Hidden themes are more persuasive than those
       THAT'S WHAT HE WANTS YOU TO
                                                                  we blurt out. During the 1992 presidential elections,
       BELIEVE. ONLY THEN DID HE HEAR
                                                                  Bill Clinton traveled by bus across the country. His
       TIMMY MOANING. WE WILL TELL
                                                                  hidden theme was much more persuasive than if he
       YOU WHAT HE WAS MOANING IN
                                                                  stood up on a podium and blurted out “I’m in touch
       FINAL ARGUMENT. "DON'T LET THIS
                                                                  with the common American.”
       HAPPEN AGAIN."
                                                                       During that same election, Ross Perot on election
                                                                  day communicated his hidden theme, “our children
d)    Voice inflections to transfer feelings                      need me,” by having hundreds of 10-15 year old kids
      The manner in which we talk influences what we              holding a “Ross Perot for President” sign across
say. If we talk in a monotone, low-pitched voice,                 Interstate 10 at T.C. Jester Road. The impact of
never changing pace or intonation, we will lose any               seeing those kids was far more persuasive than him
listener fast. But if we talk the same way we talk to             saying the words.
close friends, using variations in pitch, pace and                     Hidden themes are perfect for employing the
intonations, we will appear more like our true self.              persuasive element of CURIOSITY. In an opening
      A few rules might make us aware of the effect of            statement, I realized it would be futile to call a doctor
voice inflections used to transfer feelings...                    “cold and insensitive.” Instead, during opening
                                                                  statement curiosity was planted about a hidden
                                                                  theme...




                                                        McGehee -3

                                           Jack E. McGehee, McGehee     Wachsman
           1225 North Loop West, Ste. 810, Houston, TX 77008, 713-864-4000, fax: 713-868-9393, jmcgehee@lawtx.com
“Opening Statement: Demonstration, Dissection, Explanation”                                                         Chapter 11

We are going to see what this man’s made of when                  Expert does not practice medicine and deliver
we hear what he told the family when he came out                  babies?"
of the operating room. The very first words he                         This turnabout from opponent's voir dire and our
said to the family will give us an insight as to what             opening was carried forward in the presentation of the
kind of guy he is. Listen to the very first words he              evidence. Rather than calling the plaintiff first as had
says to the family after he comes out of the                      been our trial plan, we called the expert who was
operating room. I’m not going to tell you what                    berated by opposing counsel as having limited clinical
they are. Let’s let him tell us.                                  experience. Within minutes from the time counsel
                                                                  overstated his case, the following exchange was
    You could hear a pin drop several days later                  presented to the jury:
when the defendant was on the stand and was asked...
                                                                  1st Q: Doctor, assume that the jury was just told
Now tell us doctor, after you came out of the                            you had limited clinical experience. When
        operating room, the family was in the                            was the last time you delivered a baby?
        waiting room, weren’t they?                               ANS: Yesterday
And you said something to them as a group, didn’t
        you?                                                      Q: How many babies did you deliver in the past 12
Tell us doctor, what was the very first thing you                       months?
said to the family after you came out of the                      ANS: 200
operating room?
                                                                  Q: How many babies did residents you supervise
                                                                        in your department deliver in the past 12
And the doctor responded with the same words that
                                                                        months?
were locked in from his previous deposition...
                                                                  ANS: 900
Your father died and it wasn’t my fault.
                                                                  Q: Doctor, I apologize for seeming upset. Now,
                                                                       please tell us your name.
b)    Expose their overstatements
      Expose their overstatements made during
                                                                     Following this exchange, there was a noticeable
opening or voir dire. However, if we claim an
                                                                  mood that the defense immediately lost credibility.
overstatement, we must deliver. Never overstate.
This rule is violated every day. If the opponent
                                                                  c)   Form over substance
engages in hyperbole, exaggeration or oversell, attack
                                                                       As trial lawyers we rely on our command of the
immediately. It can change the complexion of our
                                                                  language to convey our thoughts, elicit testimony,
whole case if we can expose their overstatement.
                                                                  cross-examine adverse witnesses and persuade.
Jurors enter the courtroom today with lots of
                                                                  Words are our weapon of choice and we rely on this
preconceived negative images and ideas about
                                                                  arsenal to champion the cause of our client. But we
lawyers. One such "preload" is that attorneys are not
                                                                  have learned that information, impressions and
trustworthy. If a lawyer overstates his or her case and
                                                                  observations are communicated to the jury not only
this is immediately exposed, the juror with embedded
                                                                  through the verbal exchange, but more significantly,
distrust for our vaunted profession will tune out the
                                                                  through our appearance, actions, movements and
perpetrator for the duration of the case. Once
                                                                  intonation. First impressions are absolutely critical.
exposed, the litigator can rarely recover.
                                                                  They begin with form over substance.
      At the very end of a voir dire a very experienced
                                                                       Long ago we learned that control of the
defense lawyer told the jury that our standard of care
                                                                  courtroom is an indispensable element of the power to
expert had “limited clinical experience.”          This
                                                                  persuade. The next time that you are near the
overstatement changed the complexion of the case.
                                                                  courthouse, go into a courtroom where a case in which
During opening, we hammered this faux pas,
                                                                  you have no interest nor prior knowledge and watch
reminded the jury of the statement made by the
                                                                  closely when the array of potential jurors are led into
opposing counsel of "limited clinical experience" and
                                                                  the room. They will scan the premises, look almost
interjected some curiosity into the process by asking
                                                                  immediately at the parties involved and ask
rhetorically, "What did he mean by LIMITED
                                                                  themselves, what have they done? Early in this
CLINICAL EXPERIENCE? Is he telling you that Dr.

                                                        McGehee -4

                                           Jack E. McGehee, McGehee     Wachsman
           1225 North Loop West, Ste. 810, Houston, TX 77008, 713-864-4000, fax: 713-868-9393, jmcgehee@lawtx.com
“Opening Statement: Demonstration, Dissection, Explanation”                                                         Chapter 11

process, the individuals in the pool will look with               trial to champion the cause for our deserving clients.
close scrutiny to the lawyers. The jurors are watching            However, we often fail to recognize that those persons
and asking themselves, is this someone I would like to            who will be making the decisions on the merits of our
hear from? Is this someone who I can trust?                       claim do not share our zeal for the litigation process
     Our appearance and demeanor from the moment                  nor our excitement about trial work. Jurors from the
the panelists enters the courtroom through opening                cross section of our society have lives and routines
will be a form of communication to these fact finders.            that do not include the trials and tribulations of the
We must be comfortable with ourselves.                            civil justice process. Many feel that their lives are
                                                                  disrupted by an institution they know or care little
Clothes                                                           about. We must recognize that the majority of
Pressed shirt or blouse                                           prospective jurors enter the courtroom with
Shoes not overly worn                                             ambivalence or hostility. The case theme we select
Running watch (smart watches, no dumb                             can be instrumental in getting their attention and
watches--no matter how proud you are of your                      persuading them that your side should prevail.
hidden clasp, simply no obnoxious watches)                              A case theme should be repeated several times
Convey approachability and like-ability with your                 during voir dire and opening. It must be simple and
selection of clothes                                              easy to remember. The theme must complement the
                                                                  fundamental facts of the case and make sense to the
Exhibits                                                          average juror. The theme is the thread that will tie the
hold theirs away from your body                                   case together for the jury and provide a level of
handle yours carefully                                            comfort to the jurors that the decisions they will reach
                                                                  in the case are consistent with their principles of
Touching the client                                               fairness. (see VOIR DIRE chapter section F. VOIR
same gender--OK                                                   DIRE SHELL, 1. Introduction, for examples of case
different gender                                                  themes.)
     much older or younger than you-OK
     little age difference, be careful, especially if             4.    The painful process of organizing the opening
client is attractive.                                                   The starting point for organizing the opening
                                                                  statement is first outlining the closing argument. The
                                                                  persuasive impact is enhanced by repeating a
d)    Show AND tell during opening
                                                                  consistent theme from voir dire, through opening and
      Long ago we discovered that we retain
                                                                  into closing.       After marshaling the evidence,
substantially more information received through
                                                                  evaluating the witnesses and researching the law, we
visual means than oral communication. Accordingly,
                                                                  should be in a good position to identify our case
at this early and critical stage in the litigation process
                                                                  themes and anticipate theirs.
we should use visual aids. We should avoid a
                                                                        If we explain to the jury what is an opening
sustained objection by first making the judge aware of
                                                                  statement, never tell them what we say is not
the aid before opening.
                                                                  evidence. We all know this is in fact the law, but such
      A "storyboard" contains a very concise summary
                                                                  a disclaimer so early in the process does little to
of the case. It provides the jury with a structured road
                                                                  advance your claim. Further, it often provides a
map and can be continuously used as we call
                                                                  trigger to those jurors who enter the courtroom with
witnesses and elicit the details of the material
                                                                  strong preconceived notions against our efforts to tune
summarized in the storyboard.
                                                                  out and ignore the details of our case.
      Another option is using a standard chart pack to
                                                                        One method to organize our opening is to divide
list the names of the witnesses we expect to call along
                                                                  it into two categories: a summary of what we expect to
with a cryptic note of the subject matter that they will
                                                                  prove and a summary of the relief sought. The
address during their testimony. We should keep this
                                                                  summaries become the general sketch or road map of
material readily available and be prepared to check off
                                                                  where we plan to take the jury. This includes an
each item as the testimony is developed.
                                                                  overview of who will testify and a concise statement
                                                                  of the contribution each witness will make to the
e)   The case theme
                                                                  development of the theme.           During this initial
     Create sound bites to describe the case theme.
                                                                  component of the opening, admit to the jury what is in
As trial attorneys we long for the opportunity to get to
                                                                  controversy. Try to focus the fight clearly so the jury

                                                        McGehee -5

                                           Jack E. McGehee, McGehee     Wachsman
           1225 North Loop West, Ste. 810, Houston, TX 77008, 713-864-4000, fax: 713-868-9393, jmcgehee@lawtx.com
“Opening Statement: Demonstration, Dissection, Explanation”                                                         Chapter 11

is not sidetracked on tangential issues that have little          personal touches they employ during trial and select
to do with whom should prevail in the proceeding.                 the most effective to introduce during opening.
     Delineate witnesses during the opening as fact or                 For example, if the defense lawyer constantly
expert witnesses. As we introduce the fact witnesses,             repeats that her client is one of “those who toils at the
describe what we expect to be their first impression on           bedside of the sick and dying" when referring to
the jury. Tell the jury what we expect his/her                    physicians whose conduct is alleged to have fallen
testimony to be in a concise manner and dispel                    below the prevailing standard of care which causes
anything concerning each fact witness that might                  injury to the plaintiff. An effective way to diffuse
adversely impact on the first impression they will                such flagrant attempts to evoke sympathy is to
make to the jury. Consider appearance, demeanor,                  confront it head-on in opening as an affront to the
speech patterns and anticipated avenues of cross-                 jury. One example under this scenario would be to
examination in the introductions.                                 advise the jury that we expect one of the first
     If we were not able to develop the concept of                instructions at the close of the case from the presiding
experts during voir dire, we should introduce them                judge will be not to let sympathy influence your
during opening. There is of course no consensus                   decision, then ask them to make their decision on the
concerning the impact highly paid experts have on the             evidence, not on any sympathy. Then turn it around.
deliberative process of the jury. Some argue that
jurors resent such witnesses no matter how well                   The medical profession as a whole gets some
credentialed because they cannot overcome the                     sympathy. Some exploit that sympathy by calling
economics whereby the expert makes more in an hour                those within this profession as "those who toil at
than the average jurors takes home in their paycheck              the bedside of the sick and dying."
after a week of hard work. Others counter that jurors
are open to the opinions and conclusions of such                        The most demanding part in preparing an
experts because they appreciate the years of                      opening will be to communicate to the jury the relief
education, experience and dedication that the expert              sought. In civil cases the plaintiff will be asking for
endured to reach his or her position in the profession.           money damages.          The jurors have all heard
Regardless of which argument is found most                        misstatements and exaggerations about lawsuit abuse,
compelling, we must introduce the expert(s) to the                tort reform, the insurance crisis and threats to the
jury and take advantage of the opportunity to bolster             continued availability of goods and services at
their credentials. One approach is to ask a rhetorical            competitive levels because of the frequency and
question.                                                         expense of litigation in America. These areas are best
                                                                  addressed during voir dire and we must solicit their
How can we present to you such a complex area of                  opinions and evaluate their mind-sets before the jury
medicine such as respiratory syncytial virus                      is selected. But this education process must continue
(RSV)? What we have done is brought to this                       at every opportunity so that their detrimental bias and
courtroom for you to see and hear, professors and                 prejudices will be neutralized and the jurors constantly
clinicians from some of the best teaching                         reminded that they are to make their decision based on
institutions in medicine. Some of our experts are                 the competent evidence adduced at trial and the law as
nationally known authors, lecturers and experts in                the presiding judge instructs.
medicine. One is affiliated with the University of                      When we ask for damages be cautious not to
Texas and another Baylor.                                         appear greedy, yet we shouldn’t apologize for needing
                                                                  money to make the patient whole again. Say it once,
      Then provide a capsulized version of what each              with conviction and authority.            One effective
expert will add to the case.                                      introduction to this sensitive area is to emphasize that
      When summarizing what we expect to prove, a                 we cannot bring back the life lost or repair a brain that
subpart will necessarily be addressing our opponent's             has been permanently damaged. Suggest to the jury
case and exposing its weakness and, whenever                      that,
possible, diffusing its strength. Consider both the
evidence and the opponent. Try to steal their thunder
at every opportunity to maintain the initiative. Before
trial, talk to colleagues who have tried cases against
the adversary to learn what phrases, canned endings or

                                                        McGehee -6

                                           Jack E. McGehee, McGehee     Wachsman
           1225 North Loop West, Ste. 810, Houston, TX 77008, 713-864-4000, fax: 713-868-9393, jmcgehee@lawtx.com
“Opening Statement: Demonstration, Dissection, Explanation”                                                         Chapter 11

We would like to ask you to give Timmy back a                     nature of the case
normal life. Of course, that's impossible. You                    what we expect to prove
understand there will be no witness getting on the                relief sought
stand and saying that Timmy is entitled to an exact
total amount of money in damages, which is what                        Perhaps we will be permitted to discuss a few
we will ask for in our closing argument. There is                 other topics...
no computer program yet devised that can
calculate damages. Only people can feel pain and                  respond to opposing counsel’s voir dire, expose
hurt. Computers do not feel. Computers do not                     overstatements made by opposing counsel, and air
hope and computers do not dream.                                  all our dirty laundry.

      At this point one way to educate the jury on the            C. Common Objections          During Opening
relief sought is to detail the elements of damages.                  Statement
      Advise the jury that they will be asked to                     The most common objections include...
determine how much money it will cost for our client's
future medical care needs, loss of wage earning                   Argumentative, prejudicial and/or inflammatory
capacity, physical pain and mental anguish,                       Instructing jurors on the law
disfigurement and physical impairment. Take one of                Covering facts which will not be admissible
these elements and outline the components and                     Misstating the law
explain to the jury how the evidence will assist them
                                                                  Stating personal belief on the merits of this case
in arriving at a conclusion. Again by way of
example...
                                                                       The single most frequent objection is “arguing
                                                                  the case.” Whenever such an objection is sustained
One element of damages is Future Medical Care.                    against us, we might immediately follow with the
It's like the negligent driver who hit my car and                 words “the evidence will show...” Saying those words
caused a cut on my head, I think you all would                    will give us time to think about how to react, and it
agree I've been damaged at least by the cost of                   will usually cure an objection about arguing.
stitches and gauze required to patch up my head?
Even if the cost of stitches and gauze was a very                 D. Outline Of An Opening Statement
large amount of money? I'm still entitled to that                      The following elements might be discussed in
cost. The reason I'm telling you this is because                  each opening statement...
Timmy's future costs for medical care, physical
therapy and nursing care are high. He needs care
                                                                  Engage (concise statement of theme)
for the rest of his life. We've broken down his
                                                                  2d Facts (after voir dire) w/ each allegation of
needs dollar for dollar--the total is in the millions
                                                                  negligence
of dollars. And we will show that if Timmy uses all
                                                                  Introduce fact witnesses
the medical care that our experts will prescribe,
                                                                  Case issues w/ all weaknesses
that there will be no money left at the end of
                                                                  Case theories (Judgment v. Departure; differential
Timmy's life. This high amount of money buys
                                                                  diagnosis, etc.)
only Timmy's reasonable and necessary medical
                                                                  Introduce experts and subject matter
expenses. Listen closely to our economist who will
                                                                  Sympathy or waive the flag
explain these figures in detail. Then listen for their
                                                                  Damages and the "M" word (All relief sought)
economist, or better yet, let's see if they even call
                                                                  Defenses
an economist.
                                                                  Canned ending
     The purpose of the opening is to persuade the
jury that a justifiable recovery is not excessive.

B.   What’s Permissible And What’s Not In
     Opening Statement
     Typically state rules permit us to discuss three
topics in opening statement...

                                                        McGehee -7

                                           Jack E. McGehee, McGehee     Wachsman
           1225 North Loop West, Ste. 810, Houston, TX 77008, 713-864-4000, fax: 713-868-9393, jmcgehee@lawtx.com
“Opening Statement: Demonstration, Dissection, Explanation”                                                         Chapter 11

E.   Opening Statement Shell                                      3.  Introduce fact witnesses
1.   Engage                                                           We should show the jury that we are concerned
                                                                  about our friend, and that they should be as
My congratulations or condolences on becoming                     concerned.
JURORS. I think you will come away from this
experience believing that our system is good and                  I was thinking when we were picking the jury that
effective. Now it's time for me to get very serious.              we have several professions represented:         a
We are here today because...                                      secretary, administrator, engineer, decorator...
     [concisely state case theme]
                                                                  Although we're all neighbors here in Harris
     Another approach...                                          County, it's surprising how little we actually know
                                                                  about each others' job. I thought in these days of
May it please the court, [and if your case involves a             automation that all the hard work in farming was
big corporation, like a company that owns the                     over. So I went out and spent a day on John's
hospital]                                                         farm. I was shocked at how much he needs a
Counsel for AMI                                                   strong back.
California representative for AMI
Chairman of the board for AMI                                          We should assist in making the first impression
[and if o/c blasted you personally during voir dire]              for our witnesses. We should dispel anything that
my friend and counsel for the defendant, Mr. Billy                might have an adverse effect on their first impression.
Jo Bob Johnson.
                                                                  You'll meet Tom Smith, a big ole fellow who
     While closing in...                                          speaks with a slight imperfection, He'll be wearing
                                                                  blue jeans b/c he doesn't own a fancy suit, but
This case is about a little girl who became brain                 you'll see he's as honest as the day is long. He'll tell
damaged after gasping for air for 1 1/2 days while                you what the doctor said before they discharged
3 doctors either ignored her or treated her for a                 little Timmy.
sore throat. We will show that a reasonable doctor
would have seen little Tanya breathing fast and                         Include in the recitation of the facts, everything
known that her heart might be failing. We will                    that supports each allegation of negligence.
show how a failing heart can and did cause brain
damage.                                                           4.   Case theories
                                                                  a)   Clinical judgment vs. departure from the standard
2.   2d facts                                                          of care

Our evidence will show:                                           We wouldn't be here if this doctor made a wrong
     *[recite a version of the facts that compliments             clinical judgment. You will hear lots of discussion
the facts discussed during voir dire.]                            about how the doctor must make his decision on
                                                                  what he sees and feels. This case is not about
Mrs. MOM will say *[she heard the doctors say                     clinical judgment, it's about basic medical school
her daughter was terminally ill],                                 rules that weren't followed. These minimum basic
    but that's not the worst thing she's ever heard.              rules are called standards of care. And when you
She will say *[she heard her daughter’s last                      depart from these standards, you are negligent.
words],
    but that’s not the worst thing she’s ever heard.              We will show the basic medical care that the
You know what's the worst thing she ever heard?                   citizens of this town deserve and have a right to
When she learned that her daughter’s death was                    expect.
PREVENTABLE.




                                                        McGehee -8

                                           Jack E. McGehee, McGehee     Wachsman
           1225 North Loop West, Ste. 810, Houston, TX 77008, 713-864-4000, fax: 713-868-9393, jmcgehee@lawtx.com
“Opening Statement: Demonstration, Dissection, Explanation”                                                         Chapter 11

b)   Differential diagnosis                                       You will hear from Dr. Expert:, a nationally
                                                                  known author, teacher, and expert in this
        We will show that the most important                      procedure, that had Dr. Defendant diagnosed
function of an ER doctor is to identify life                      cancer on time, the plaintiff would still be alive
threatening illnesses. We will show that when a                   today.
doctor examines a patient, he is required to follow
certain rules. He lists the clues, by writing down                He’s not a BACK YARD expert. You will hear
the symptoms, taking a history and conducting a                   how difficult it is for patients to find OBJECTIVE
Physical Exam.                                                    experts to review cases. We have objective experts,
        Then, like a detective, he makes a list of                not someone from her own backyard.
possible diagnoses, with the most serious on top.
Then he proceeds to "rule out" the diagnoses with                 Regarding their experts:
tests. What you’re left with is the final diagnosis.              I suspect they will say ...
You will hear this list referred to as "differential                      everything this defendant did was OK,
diagnoses."                                                               they will call plaintiff’s injury a
                                                                          complication,
        For instance, the differential diagnosis for a                    they will rubber stamp everything the
lump on the breast is cancer. And a doctor                                defendant did.
shouldn't conclude it’s a benign cyst until he rules              I suspect they will all stick together.
out cancer.
        And a doctor shouldn't conclude a child                        For economists...
with symptoms of croup has the virus until he
rules out epiglottis, a life threatening disease.                 We have an economics professor who will come
        And a doctor shouldn't conclude that                      and compute exactly what Timmy can expect to
swollen glands under the ears is a head cold until                lose from loss of wage earning capacity and what
he rules out Hodgkin’s disease.                                   will be required to pay for future medical care.
        And a doctor shouldn't conclude a
persistent head ache is due to tension until he rules             We expect that his calculations will not be
out a brain tumor.                                                challenged with real evidence. Oh, they will be
        And this doctor shouldn't have concluded                  challenged, but only with lawyer talk. And you
that rapid breathing in a child is a sore throat until            know what that's worth. Listen to what THEIR
he rules out congestive heart failure.                            economist says, or better yet, let's see if they even
                                                                  have one.
5.   Experts
                                                                      The following might be a stretch, but I’ve always
And how can we best teach you these medical                       wanted to try it...
school rules? We brought you the professors from
the best teaching institutions in the US.                         Since the economist's numbers are so important,
                                                                  we will offer a challenge. We are supposed to
Some of our experts are nationally known authors,                 exchange witness lists 30 days before trial, and
lectures and experts in medicine. One is affiliated               these lawyers never listed an economist, that's how
with University of Massachusetts, one with the                    I know our calculations will not be challenged with
University of Texas Medical Branch, one with LSU                  real evidence. I challenge him to find one single
Medical School, and one with Texas A & M.                         economist who disagrees with ours. If he can, I
                                                                  will waive the 30 day period and invite him to come
They will tell you how a reasonable doctor would                  in and talk to y'all. Now I'm curious to see if these
have avoided mom's pelvis, and would have                         lawyers can come up with real evidence, more than
delivered abdominally. They will tell you all the                 their lawyer talk.
rules that were broken and what a reasonable
doctor would have done.                                                Here's an alternative to the ECONOMIST's
                                                                  discussion above.
     Another approach for experts...
                                                        McGehee -9

                                           Jack E. McGehee, McGehee     Wachsman
           1225 North Loop West, Ste. 810, Houston, TX 77008, 713-864-4000, fax: 713-868-9393, jmcgehee@lawtx.com
“Opening Statement: Demonstration, Dissection, Explanation”                                                        Chapter 11

If I did not think I had proven that the doctor's                You heard the opposing counsel jump on the band
negligence caused Timmy's injuries, I could not in               wagon and try to relate the sympathy to our entire
good faith ask for damages. Plaintiff would like to              case. That's QUICK THINKING. Well let's set
ask you give Timmy back a normal life. Of course,                the record straight, we're not here for sympathy.
that's impossible.                                               Timmy’s mom got sympathy at the funeral, from
                                                                 friends, at work, school, church, they got enough
You understand there will be no witness getting on               sympathy to last them 10 lifetimes. We're not here
the stand and saying the plaintiff is entitled to an             for sympathy, we're here for justice.
exact total amount of money in damages, which is
what we will ask for in our closing argument.                    Sympathy is degrading and never adequate.

Computers can't calculate all Timmy's damages.                   He doesn’t want sympathy, he wants justice.
Computers don't hurt.
Computers do not feel.                                           Forget sympathy, but don’t forget empathy.
Computers do not hope and
Computers do not dream.                                          No one will ever tell you to forget what you've
                                                                 learned in becoming a wise adult, no one will ever
We bring to you an economist who is trained to                   tell you to forget EMPATHY.
computed future cash needs according to
assumptions... [repeat from above]                               Sympathy means "you hurt and I hurt with you."
                                                                 Empathy means "you hurt and I understand."
6.  Sympathy
    Recall that during voir dire we discussed                    You don’t see Timmy in this court room. Because
sympathy. We said something like...                              if you did, you would hurt for him. We don’t want
                                                                 you to hurt for his pain, we want you to
The first instruction given by the judge will be not             understand his pain.
to let sympathy influence your decision. It's first
because it's most important. You must make you                   I pray that you will empathize with little Timmy.
decision on the evidence, not on any sympathy.
                                                                 7.   Damages and the "M" word
Now we are suing individuals and an organization.                     We must discuss damages during opening. If our
The law gives us a remedy no matter how much                     case is big, and we expect to ask for over a million
you may like this organization and these people.                 dollars in closing, we should step up to the plate and
That's not what were here for.                                   say so before the defense makes us look greedy.
                                                                      We should not overuse the word “million.” Use
The medical profession as a whole gets some                      the word ONCE. It stings our ears. If we walk by a
sympathy. Some exploit that sympathy by calling                  group of people talking and hear "million dollars," our
the profession "those who toil at the bedside of the             attention is immediately captured. If you hear
sick and dying."                                                 someone say it over and over, how do you feel? We
        Will you promise not to let sympathy enter               shouldn’t appear greedy, yet we shouldn’t apologize
        into your decision?                                      for needing money to make the patient whole again.
                                                                 Say it once, with conviction and authority.
     Next, the defense lawyer certainly commented
about sympathy, since we brought it up during our                You will be asked to determine how much money
voir dire. If the bait is taken, the door is open to             should be reimbursed for Timmy's past medical
further comment on sympathy during opening                       care needs: loss of wage earning capacity, physical
statement.                                                       pain and mental anguish, disfigurement, physical
                                                                 impairment.

                                                                 Another element is Future Medical Care:



                                                      McGehee -10

                                          Jack E. McGehee, McGehee     Wachsman
          1225 North Loop West, Ste. 810, Houston, TX 77008, 713-864-4000, fax: 713-868-9393, jmcgehee@lawtx.com
“Opening Statement: Demonstration, Dissection, Explanation”                                                        Chapter 11

You heard in voir dire my example about a man                    But our evidence will show that none of their
who crashes his head into the windshield. We all                 excuses can explain how Harry Torres was:
agreed that a defendant would be required to pay                 "crushed in a car accident" according to the ER
for the cost of stitches and gauze. And tomorrow if              record.
the dressing needs changed, he should again be
required to pay for the new gauze.                               They may try to profit: They may say that they
                                                                 hurt her so BAD that there is no need to pay for a
The reason I asked that was because the cost of                  full lifetime of medical care. They hurt her so bad
Timmy's stitches and gauze is horrendous. The                    she is going to die early.
cost of his future medical care will be in the
MILLIONS of dollars. And we have a Life Care
                                                                 These are defenses which they are entitled to make.
Plan that will itemize every penny.

We expect the defense to cut the cost of future                  9.   Ending
medical care by saying Timmy may die early.
                                                                 Listen to the doctors and not only think about
Our expert will say only God can determine when                  what they say, but watch how they say it. Listen if
Timmy will die, and that Timmy could outlive the                 they answer my questions with other questions,
statistics. Everyone will agree that with no medical             and listen to whether they answer my questions at
care, he will die. We will ask you to assume                     all. In short WATCH OUT FOR THE WOOL.
Timmy lives a normal life and not sentence him to                Don’t let them pull it over your eyes.
death by only paying for a few years of future
medical care.                                                    Listen to the doctors and not only think about
                                                                 what they say, but listen for hidden agendas, any
And we will show that if Timmy uses all the                      interests they might have with this hospital. Listen
medical care that our experts will prescribe, that               for whether the experts have any interests in this
there will be no money left at the end of Timmy's                case that might not be apparent.
life. This exorbitant amount of money buys only
Timmy's reasonable and necessary medical                         Today Lorena Anzaldua is not the happy baby she
expenses.                                                        once was. She no longer has a good life ahead of
                                                                 her. She no longer has a bright future. Today her
Listen closely to our economist who will explain                 future does not include growing up like a normal
these figures in detail.                                         child, smiling, talking, crawling, walking, running,
                                                                 and playing outdoors with friends. Today she
Then listen for their economist, or better yet, let's            comes to you for help.
see if they even call an economist.
                                                                 Today we will test the system. Because this is a
    Continue discussing the other elements of                    unique case, not a case where someone seeks a
damages supported by the evidence.                               windfall, but a case where Plaintiff merely wants
                                                                 back what they took. And after today, I think the
8.   Defenses                                                    system will be improved, strengthened, made
                                                                 better.    Because today, On * 1996 in this
Of course, these lawyers are not going to come in                courtroom, the system works. Plaintiff is counting
here and admit they were wrong. No, they were                    on it.
paid to defend this case. They are going to fight us
every inch of the way. I'm sure they will have                   F.   Example Specimens For Use In Trial
experts who will go through all the regulations and              1.   Husband’s lost spouse
try to show how they complied.                                        For a husband who lost a wife, we can inject
                                                                 emotion into an opening by simply reciting minor
                                                                 details about how the loss affects his life today...



                                                      McGehee -11

                                          Jack E. McGehee, McGehee     Wachsman
          1225 North Loop West, Ste. 810, Houston, TX 77008, 713-864-4000, fax: 713-868-9393, jmcgehee@lawtx.com
“Opening Statement: Demonstration, Dissection, Explanation”                                                         Chapter 11

I nearly forgot, we’ll call Jeff to testify about his             G. Example Opening Statements
life today...                                                     1. Medical malpractice opening statement

He won't moan and groan about how awful life is.                  We are here today because Dr. Defendant did not
He'll tell you he still goes to movies, he still laughs,          follow the standard of care. She didn't treat
he still goes to parties, he still works hard.                    Lorena like a reasonable doctor would have. She
                                                                  violated the most basic medical principles.
He won't tell you he hurts.
                                                                  She IGNORED HER PATIENT. Lorena got lost
He WILL tell you that                                             in the shuffle.
     ...there's always something lingering in the
back of his mind.                                                 Then she allowed someone who is not even an ER
     ...he sometimes finds himself over on Chestnut               doctor to botch up placing the tube down her
Street                                                            throat. And she never intervened. She let Lorena
     ...when he's on Chestnut street he slows down,               continue with no heart rate, not breathing, no
usually rolls down the window, leans over, looks                  blood pressure.
out his right window, so he can get a good look at
St. Luke’s Church, where he and Catherine were                    And Dr. 2d Defendant couldn't have done much
married on April 10, 1981 (8 years ago) in front of               worse. He is a pediatrician, he's supposed to know
50 friends and relatives. He sees one of those                    how to intubate. It's not so bad that he put it down
people every day. One old man, a senile old man,                  the wrong passageway, but he did nothing about it.
who attended the wedding, Jebb Griffin, even after                Lorena never responded to his intubation, I
the wedding, kept asking when was he going to                     wonder why?
marry Katherine. Now, it seems every time he sees
Jeff, he asks, how's that bride of yours? Jeff just               FACTS
says "fine" and walks on.                                              On December 23, 1989 little Lorena Anzaldua
                                                                  was a happy baby. She had a good life ahead of
He WILL tell you that                                             her. She had a mommy and daddy who wanted
     ...when he's over there by the church, even                  her to come into this world, who loved her and who
though it's out of his way, that he always seems to               loved each other. She was looking forward to a
turn onto Oak Street, that his car seems to                       bright future. Her future included growing up like
instinctively slow down until he nearly coasts up to              a normal child, smiling, talking, crawling, walking,
the top of the hill, right beside Oak Ridge                       running, and playing outdoors with friends.
Cemetery. On a clear day, he can see the top of her
tomb stone. He can't read it, but he knows what it                24th
says. He'll tell you how they both decided what to                The next day she developed a congestion. She
write on their tomb stones. Something that showed                 appeared slightly ill to her mother. She couldn't
everyone they still love each other. I won't tell you             breath properly, she had a strange drainage
what it is. He really wants you to know.                          coming from her nose, she vomited and she only
                                                                  fed from 1 breast rather than the normal 2, so she
He WILL tell you that                                             had slight eating difficulty.
     ...sometimes, sometimes when he's not
thinking clearly, he will tell you how he finds                   Now we know Lorena was developing a touch of
himself rushing home, to 718 Flowers Drive, and                   pneumonia.      The technical term is RSV,
actually expecting to see a light on in Catherine's               respiratory syncytial virus. It's the most common
old study. It's never actually been on since she                  type of pneumonia for little babies.
died. But you can't prove it by him.
                                                                  As any good mother would do, Alberta arranged
...HE WON'T TELL YOU IT HURTS.                                    for Freddy to baby-sit and she took her baby to the
     But we'll see, it does.                                      hospital.   The hospital where her baby was
                                                                  delivered. The hospital she trusted.


                                                       McGehee -12

                                           Jack E. McGehee, McGehee     Wachsman
           1225 North Loop West, Ste. 810, Houston, TX 77008, 713-864-4000, fax: 713-868-9393, jmcgehee@lawtx.com
“Opening Statement: Demonstration, Dissection, Explanation”                                                        Chapter 11

4:25                                                             BLUE.!”
She went in and was processed in slowly, but not
too slowly. The nurse came and looked at Lorena,                 Alberta's crying.
then the doctor came.
Meanwhile, Lorena is about the same.                             RESUSCITATION
                                                                 Then, behind those doors, Dr. 2dDefendant places
30 min. CXR                                                      a tube down the wrong passageway.
Then an eternity passed. It may have been about                  Still, Dr. Defendant has no clue what had
30 min.                                                          happened to Lorena.
Meanwhile, Lorena is getting worse.                              Finally, Dr. Defendant joins Lorena. She never
She's having more difficulty breathing.                          removes the tube.
      nose starting to flare                                     For the next 19 minutes, Lorena's entire airway
      breathing faster                                           was plugged up with a tube stuck down the wrong
      muscles to fight to get air into her lungs.                passageway.
      making noise with each breath.
Where's Dr. Defendant?                                           NEGLIGENCE LIST
Finally someone came for x rays.
They came and left.                                              You will hear from:
Still Alberta trusts this hospital.                              1.     Expert:      You will hear from Dr.
Lorena is getting worse.                                         NEUROLOGIST, a nationally known author,
                                                                 teacher, and expert who teaches at HARVARD
10 min. BLOOD                                                    MEDICAL SCHOOL, that Lorena's brain could
Another eternity passed. It may have been 10                     survive 5 minutes in that condition. These doctors
minutes.                                                         had 5 minutes to correct their problem, before
Where's Dr. Defendant?                                           Lorena suffers irreversible brain damage. He will
Finally someone came to take some blood.                         show proof of how he knows for certain that the
They came and left.                                              tube was misplaced.
Still Alberta trusts this hospital.
Lorena is getting worse.                                         DR. AFTER ATTENDING saved her.

10 min. Phone Call                                               Dr. PATHOLOGIST--a world famous forensic
                                                                 pathologist who worked on cases that we all have
30 min. ADMIT                                                    heard of. He's probably the world's authority on
Another eternity passed. It may have been 30                     the JFK assassination. He consulted on the Robert
minutes.                                                         Kennedy assassination and has appeared on 20/20
Still Alberta trusts the doctor.                                 on more than one occasion to discuss his high
Lorena is still getting worse.                                   profile cases.
Where's Dr. Defendant?                                           It's his job to figure out how injuries occur. He
I hear her--Dr. Defendant is on the phone. “Admit                will show proof of how he knows for certain that
for pneumonia!”                                                  the tube was misplaced.
Thank God someone is finally going to help.
Dr. Defendant comes and says “call your                          Dr. EMERGENCY MEDICINE--an ER doctor will
husband.”                                                        explain why Dr. Defendant violated her duties by
It's 6:25.                                                       not giving Lorena medicine for her problem. He
                                                                 will teach how delicate little babies are.
But she doesn't look at Lorena.                                  NEONATES, and how they require closer
Lorena is getting worse.                                         attention than the rest of us.

A nurse comes to start an IV.                                    not a BACK YARD EXPERT
BAM--Lorena stops breathing!!     She's blue!!
Emergency!! They take her to the trauma room.                    2 nurses will explain how Dr. Defendant violated
CODE blue!! ALARM!! Loud speaker. “CODE                          the most basic standards of health care--standards

                                                      McGehee -13

                                          Jack E. McGehee, McGehee     Wachsman
          1225 North Loop West, Ste. 810, Houston, TX 77008, 713-864-4000, fax: 713-868-9393, jmcgehee@lawtx.com
“Opening Statement: Demonstration, Dissection, Explanation”                                                        Chapter 11

that are even known by the nurses.                               2.   Child death case
                                                                      Introductory comments in a child death case...
Finally, we have Dr. REHAB has projected out all
of Lorena's costs of medical treatment for the                   NOT TIME TO DIE
remainder of her life. Assuming what they did
doesn't cause her to die earlier, his numbers were               On November 15, 1990, little Toni Schwochow was
then sent to                                                     a happy energetic young man. In his 8 years of life
                                                                 he
Dr. ECONOMIST, an economics professor at TX                          played,
A&M who reduced the cost of medical care down                        made lots of friends,
to "Net Present Value".                                              did pretty well in school,
He will also compute what Lorena lost in terms of                    developed a love for Dinosaurs
WAGE EARNING CAPACITY because of her                                 liked *[insert hobbies]
injury.                                                              liked *[insert activities]
                                                                     developed into a contributing member of the
DEFENSE                                                          family.
                                                                     *list chores
Of course, these lawyers are not going to come in                    and he played drums in the family
here and admit they were wrong. No, they were                    band--**[name of band]
paid to defend this case. They are going to fight us
every inch of the way. They've had over a year to                It wasn't time for him to die.
think up answers to everything. Like I said, they
could even force us to prove that Lorena was born.               He had too much more ...
                                                                     to give his family
But our evidence will show that none of their                        to give his friends
excuses can justify why Lorena was left untreated                    to learn from Mr. Brown, his school principal
until she finally stopped breathing.                                 to learn from Mrs. *, his teacher

CONCLUSION                                                       It wasn't time for him to die.

Listen to the doctors and not only think about                   He had
what they say, but listen for hidden agendas, any                    more songs to learn.
interests they might have with this hospital. Listen                 more jobs to perform around the house
for whether the experts have any interests in this                        *list unfinished chores (like "his tomatoes
case that might not be apparent.                                 hadn't grown yet")
                                                                     more things to buy
Today Lorena Anzaldua is not the happy baby she                      more *[insert hobbies]
once was. She no longer has a good life ahead of                     more *[insert activities]
her. She no longer has a bright future. Today her                    more happiness to give his mom
future does not include growing up like a normal                     more footsteps to walk in behind his dad.
child, smiling, talking, crawling, walking, running,                 He had to see Jurassic Park.
and playing outdoors with friends. Today she
comes to you for help.                                           It wasn't time for him to die.

Today we will test the system. Because this is a                 He had his dreams
unique case, not a case where someone seeks a                        high school
windfall, but a case where Plaintiff merely wants                    college
back what they took. And after today, I think the                    get married
system will be improved, strengthened, made                          have a son
better. Because today, On May 6, 1991 in this
courtroom, the system works. Plaintiff is counting               He had the same life ahead of him
on it.                                                               that our kids had when they were 8 years old

                                                      McGehee -14

                                          Jack E. McGehee, McGehee     Wachsman
          1225 North Loop West, Ste. 810, Houston, TX 77008, 713-864-4000, fax: 713-868-9393, jmcgehee@lawtx.com
“Opening Statement: Demonstration, Dissection, Explanation”                                                         Chapter 11

     that we all had when we were 8 years old.

It wasn't time for him to die.

Until, on November 16, 1990...

3.   Ad litem opening

Introduction:

I am not associated with the other lawyers in this
case. In fact, I will not be sitting with the plaintiffs
or with the defense lawyers. I was appointed by
the judge to make recommendations to you for the
benefit of Erin..

At the conclusion of this case, I will share that
recommendation with you. I may agree or
disagree with the other lawyers in the case.

I think you already know that this is a very serious
case. In fact, it is the most serious kind of case that
you will ever hear about. I think you will value the
experience in the years to come.

Again, thank you for serving today. I look forward
to providing my recommendations at the
conclusion of the trial.

II. CONCLUSION
      The opening provides an excellent opportunity to
persuade the jury that our claim and request for relief
is just and right. The opening must not stand alone. It
must be modified significantly after hearing the case
themes by the opposition’s voir dire. The case theme
should be repeated during the opening to provide the
binding thread throughout the entire trial. We should
not be content to simply recite facts in the opening
without injecting all the emotion we feel for a
deserving client. We are persuasive in opening
statement when we talk like ourselves, act like
ourselves, and look like ourselves. So the number one
rule is BE OURSELVES. If we believe in our case, it
will show.




                                                       McGehee -15

                                           Jack E. McGehee, McGehee     Wachsman
           1225 North Loop West, Ste. 810, Houston, TX 77008, 713-864-4000, fax: 713-868-9393, jmcgehee@lawtx.com
    “OPENING STATEMENT:
Demonstration, Dissection, Explanation”

                 State Bar of Texas
    Advanced Personal Injury Law Course 2006




                                              By Jack E. McGehee
                                              McGehee       Wachsman
                                              Dallas, July 12,2006
                                              San Antonio, August 2, 2006
                                              Houston, August 23, 2006




  Qualities of a GOOD opening statement



                       FACTS only
                     EASY to prepare
   Books say no emotion, argument, anger, sympathy, fear, rhetoric


  Qualities of a GREAT opening statement



      Demonstration (the evidence will show...)




                                                                            1
                                         MECHANICS
Before speaking the first word, look at the jury
Be absolutely truthful.
Never overstate anything.
Do not read.
Use simple and positive language.
Move around the courtroom for emphasis.
Control the courtroom.
Use visuals and exhibits.
Use present tense.
Consider telling the story from point of view of bad guy, not good guy.
  Otherwise, the jury will think of thousands of excuses for the behavior.
Don’t repeat “the evidence will show...”
Fully explain every negative in the case.
Diffuse opponent’s strength.
Make the client a human.
Communicate approachability.
Repeat the theme using sound bites...
  This is a case about cheating.
  This is a case about broken promises.
  This is a case about police brutality.
  Revenge. That's what this case is all about.
  This case is about being responsible for your own conduct.
End the story with the filing of a lawsuit and the jury’s purpose today.
  “faced with a lifetime of medical bills, they had no recourse but to right the wrong
  that changed their lives forever.”




                         Number ONE Rule

EMULATE THIS PERSON
             (INSERT YOUR NAME HERE)
       ___________________________________




                                                                                         2
                            OPENING STATEMENT SHELL

•   ENGAGE (theme)

• SECOND FACTS
     The evidence will show:..
     Expand facts discussed in Voir Dire

• INTRODUCING WITNESSES
        •FACT
        •EXPERT

• CASE THEORIES
    • Clinical judgment vs. departure from the standard of care
    • Differential diagnosis

• SYMPATHY

• DAMAGES AND THE “M” WORD

• DEFENSES

• ENDING (theme)




                                      THEME




                                                                  3
 RULES vs. WHAT’S ALLOWED

RULES OF CIVIL PROCEDURE

       1. Nature of the case

       2. What we expect to prove

       3. Relief sought



PLUS
       Respond to Voir Dire
              o/c’s overstatements

       Air dirty laundry




             COMMON OBJECTIONS




 •Argumentative, prejudicial and/or inflammatory

 •Instructing jurors on the law

 •Misstating the law

 •Covering facts which will not be admissible

 •Stating personal belief on the merits of this case




                                                       4
                                   TECHNIQUE



  CONVERSATION

  VOICE INFLECTIONS TO TRANSFER FEELINGS

        When we talk about the injury, use...

        When we talk about the REASONS for the injury, we’re angry and we should use...

        When we talk about factual information, use...




 HIDDEN THEMES

 FORM OVER SUBSTANCE




                                  CONCLUSION

         Opening statement is passionate storytelling. It is the beginning of
the urgent end in presenting the Plaintiff’s case.


                               The human brain is a wonderful organ.
                               It starts to work as soon as you are born
                                and doesn’t stop until you get up to
                                deliver an [opening statement].
                                             comedian George Jessel




                                                                                          5
    “OPENING STATEMENT:
Demonstration, Dissection, Explanation”

           State Bar of Texas
   Advanced Personal Injury Law Course 2006




                               By Jack E. McGehee
                               McGehee       Wachsman
                               Dallas, July 12,2006
                               San Antonio, August 2, 2006
                               Houston, August 23, 2006




                                                             6

				
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