Story, Relationship, Theme
The following article was written by Gary Green and published in Vol. 6, Issue 2 of JUSTLAW: The Binding Word of the Southern Trial Lawyers Association.
On April 9, 2014, Law Offices of Gary Green, in the case of Graciano vs. Francis Renee Montgomery, received a verdict for the plaintiff in the amount of $6,378,120.68, the largest medical negligence verdict ever awarded in Independence County.
1968. First day of high school basketball practice. One teammate was late getting dressed out. Once all of us finally were on the court getting warmed up, the coach walked to the center of the court and without any explanation ordered us to the far end of the court where we started our sprints to the opposite end. We sprinted back and forth until nobody needed anymore warming up. Then we ran “the lines.” To the free throw line; to the half court line; to the far free throw line; to the far out of bounds line. Then we ran the lines some more. Next we ran laps around the court. Too many. We were tired. Next we ran “the stands.” Up and down, up and down, two elliptics on one side of the stands; then down the stands and across the court to the other side for two elliptics there. We ran the stands until we were holding our sides, afraid to stop but stopping, heaving to breathe. The coach walked back to the center of the court and summoned us all there. “Gentlemen, there are two lessons you must learn before we start practice. When one of you lets down the team, the whole team suffers. And it’s better to be an hour early than a minute late.”
Fetal monitoring strips. Variable decels. HIE. Not too many years ago it all would have been Greek to me. But we were representing a child. A severely injured child. A child whose parents couldn’t speak English. We lawyers had to understand the medicine, and then find a way to teach the medicine to the jury. And we had to do what we could to have the jury receptive to helping someone who did not speak English.
The baby was born by C-section at 3:40 p.m.
All experts agreed that had she been delivered 30 to 40 minutes earlier, there would have been no injury.
The doctor had visited the mom, a multiparous patient, at the hospital at 9:30 that morning, and hadn’t seen her again until she was called over for the STAT delivery.
All agreed that the second stage of labor began no later than noon. The doctor did not lay hands on the multip for more than three hours after the second stage of labor.
On the Friday afternoon of the second week of trial, Tara, Randy, Thomas and I found ourselves at the local pizzeria, going over the trial and the tribulations presented. Randy said we needed a good team analogy. The doctor and the nurse were supposed to be working together as a team. They testified they always had worked as a team in the past; that they respected each other. But they hadn’t worked together this time; they hadn’t communicated well. According to the doctor, the nurse hadn’t communicated at all; according to the nurse, the doctor hadn’t listened.
Long before the start of the trial I knew I was going to use the “better to be an hour early than a minute late,” but until Randy asked for the team analogy I hadn’t thought to include the story about the teammate who was late for practice. As I told them the story at the pizzeria, we all knew it made for a good theme.
Our theme was only spoken once, in closing rebuttal. It was never mentioned before then. No chance was given to the defense to attack or cross-theme. There was no hint to the defense that they should stress their testimony even more that the nurse is the eyes and ears of the doctor, that the doctor shouldn’t be required to be at the hospital until the baby’s ears were sticking out. There was no telegraphing our complete reliance of our own OBGYN expert that the doctor had an independent duty…
In rebuttal the jury was reminded of the doctor’s independent duty to find out what was taking so long to deliver the child; of the parents’ tried and true duty and promise to take care of their child for the rest of their lives; of the jurors’ duty to follow the law; and of the duty of the attorney to represent this child, a duty I was then taking off my shoulders and placing onto the shoulders of the jury, reminding them, “You’re the coach now. Teach the doctor it’s better to be an hour early than a minute late.”
On day one of trial, during voir dire, I had asked the panel to complete the missing word from “red, yellow, black and _____.” When three or four jurors answered “white” at the same time, I knew we would have a good jury, that the jury members would know from their days of Sunday school that the law must be colorblind.
On the penultimate day of trial, closing arguments ended in the early afternoon. The jury deliberated until 5:00 p.m. and then asked to be excused until the following morning. Each day trial had begun at 8:30 a.m. The main courthouse doors remained locked until 8:00 a.m., but a basement door could be accessed earlier. That final morning I stopped for breakfast and checked emails. I knew I had to be early again, and I was. (Forty-five years later and I’m still more likely to be early than late. Somehow I can’t help it!) I strode up to the main door of the courthouse to find it still locked. As I turned to head for the basement door, I couldn’t help but notice four jurors sitting in their parked cars, almost an hour early, waiting for the courthouse doors to open. I knew it was going to be a good day!