Trying a Medical Malpractice Case in the Age of the Shrinking Attention Span

There’s no question, the law can be complicated and confusing. Trial lawyers become so passionate about a client’s case that they get mired in the detail and complexities of meeting the elements of the plaintiff’s claim and often times lose sight that much of their job is in educating the jury so they can decide the case. In the context of a medical malpractice trial this often involves lengthy testimony dedicated to science, data and complex analysis that leave a jury bleary-eyed, exhausted and pining for an exit, or a nap. The most gifted trial lawyers I have seen on both sides of the bar are those who can elicit the facts in a concise, engaging, understandable fashion, then clearly explain how they square with the law.

Like almost everything we do as lawyers, we have to step into another’s shoes (the juror’s in this case) and map out the basics. So, when we’re knee-deep in discovery, we’ve got to make a point of repeatedly reviewing the complaint, making sure we’re adducing the evidence to support the case as we’ve alleged it, or, as often happens, amend the complaint to conform to the facts and pursue further discovery accordingly. Or we have to look ahead, make it a practice to review the jury instructions applicable to our claims so we’re ever-mindful of what we will have to teach the jurors and develop the tools to do so in the most accessible, easy-to-understand manner.

This often means retaining not only the top experts but just as important those who also have the ability to relate to the jury. Believe me, the combination of these qualities in an expert witness sometimes seems as rare as a Cubs World Series win, but it is nonetheless crucial to the success of the case. Other ways of delivering information to today’s jurors afflicted by withering attention spans is to employ technology. Using applications that make demonstrative evidence interesting and grabs the juror’s attention, like 3D Medical technology or interactive exhibits, has the added benefit of enfranchising the visual learners. Humans in the 21st century are drawn to screens; if you’re skeptical, just walk into a restaurant that has video monitors and count how many eyes are drawn in their direction. After all, the invention of the television directly correlates to the reduction of the human attention span.

After all of the evidence is in at trial, trial attorneys have to return to the basics again using the complaint to craft the jury instructions supported by the evidence. In my experience, the “keeping it simple” strategy is vital in drafting the issues instruction. I’ve seen cases succeed or fail on an issues instruction, one that is either too complicated or too specific. Issues instructions should not contain more than three incisive issues. They should be as broadly drawn as the judge will allow. Because the jury has had one chance to hear all of the evidence and only a brief education on the issues they must be given wide latitude to apply the facts to the law. The same is true for the burden of proof and damage instructions as well as the verdict forms. Give the jury a roadmap, but give them a direct route. The more succinctly you present your case the easier you make it for the jury to find in the Plaintiff’s favor.

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Trial Attorneys Mark McNabola, Ruth Degnan

$20

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Lead Trial Attorney Mark McNabola

$14

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Trial Attorneys Mark McNabola, Ruth Degnan

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