Leading medical malpractice attorneys on both sides share storytelling strategies
by Doug Chartier
LAW WEEK COLORADO
In medical malpractice cases, lawyers on either side can agree on one thing: Something terrible happened. But the stories about what happened diverge from there, and oftentimes so do the methods of telling them.
That divergence in many cases springs from the fundamental difference in the perspectives of the plaintiff patient and the defendant health care provider — the former is the recipient of an unfortunate outcome, and the latter is a professional who must prove he or she acted reasonably based on the medical situation.
The patient looks at the events surrounding the claimed injury much differently than his or her treating doctor does, according to medical malpractice defense attorney Steven Michalek, managing member with Denver firm Childs McCune. Defendants have to tell their story from a place of training, experience and how the patient presented. But for the patient, that story may be more focused on the symptoms, pain and difficulty experienced before and after the claimed injury, Michalek said.
And the jury typically sees the two parties in fundamentally different ways from the outset of the trial — at least in terms of sympathy, Michalek said. That sympathy deficit is a commonly cited challenge among defense practitioners, coupled with the idea that most jurors might have a harder time relating to the medical professional. Doctors are people, too, but they are often viewed as part of a massive, less personal health care system, he said.
But effective storytelling is a vital component of trial strategy for either side.