Trial Magazine

Birth injury cases are complex. The facts and the medicine are complicated, and there is a lot for jurors to understand. Standards of care can be ambiguous, and ambiguity favors the defense.

Complexity, confusion, and ambiguity are the “three horsemen of defeat”—powerful weapons used by the defense.¹ The defense strategy is to launch a scattershot blast of complicated information to confuse the jury. You must present a targeted case for the jury that is simple, correct, and credible.

Begin with the end in mind. The goal is to have the jury determine that the defendant is responsible and accountable for the full measure of damages. To do that, the jury must know that you are right on the facts, medicine, and law. The jurors must come to know intuitively that holding the defendant accountable is the morally correct decision. They must believe in the case and in your clients, and you must motivate them to find for your clients appropriately and justly.

Chances are, most jurors know little about the medicine of birth injuries. Think about how you feel when you listen to a conversation you don’t understand. You don’t connect, and you disengage. This is not what you want jurors to do.

As an advocate for an injured baby and the baby’s family, it is your job to communicate the complicated medical information in a way that jurors understand it and recognize its importance. Here are five practical tips to accomplish just that.

Don’t Wing It. You Need a Plan.

As soon as you take the case—and continuing through case development—determine which key terms and medical concepts the jury must understand. Build a teaching blueprint of what information you need to teach the jury, how you plan to do so, and what you need at trial to teach effectively, including a visual strategy with demonstrative aids.

To do this, draft an opening statement even before you start taking depositions. Don’t type it. Instead, turn on your dictation tool and say it out loud. The end result will be more conversational and relatable.

Explain your whole case from start to finish, in detail. Use simple, understandable words and explanations.

From this, outline every important piece of information necessary to explain the timeline of events that led to the baby’s birth injury to someone who knows neither the facts of the case nor the medicine. Include medical terminology, concepts, causation, injuries, anticipated defenses, and—especially important—damages.

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Do not overlook the importance of teaching, showing, and telling the damages story. The jurors must fully understand damages to get the damages verdict right.

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You might feel a natural tendency to focus on proving liability because that is where the fight is, but be sure that you do not overlook the importance of teaching, showing, and telling the damages story. The jurors must fully understand damages to get the damages verdict right.

List the medical records that you will need to tell the story, the medical literature that you may want to cite in support of the medical concepts, and visual aids that will help the jury understand. Prepare a chronology to make that sure you don’t leave out any important information. Continue to revise and refine your draft. Practice telling the story and explaining the technical information in simple terms.

Frame the Big Picture First, Then Layer in the Details.

Jurors want to do what is right, and they want their verdict to have significance. You need to teach them what that is and show them that your client’s case facts are accurate and your client’s story is compelling. As birth-injury lawyers, we use a variety of tools in case development and trial: narrative storytelling, framing the case,² rules of the road,³ and showing the damages and real effect on the child and the family. In opening statement, frame the important issues in the case so the jurors can understand what the evidence means and how they should use it to decide the case.

When good teachers explain complex concepts to students, they start with an overview of the most important pieces of information before diving into the details. The overview alerts students to the type of information they will hear and see and gives context about how the information is connected and—more importantly—why it matters. That is the big-picture frame of the case.

One common type of birth injury case is a “strips” case where the fetal heart rate on the fetal heart monitor tracing is initially normal but progressively becomes abnormal. The baby develops hypoxia, asphyxia, hypoxic-ischemic brain injury, and cerebral palsy.

Jurors need to understand the basics of fetal heart monitoring, including fetal heart rate patterns and uterine contractions. They need to understand medical concepts involving oxygenation of the baby, including how and why lack of oxygen damages the brain. They also need to understand the location and pattern of the brain injury. That’s a tall order for anyone.

The medicine of hypoxic-ischemic brain injury is all about oxygen, so frame the big-picture, fundamental medical concept in opening statement: Human beings need oxygen to survive. It doesn’t get more basic than that. The same is true for babies who are still in utero. The pathway of how babies get oxygen is just different.

Teach the fundamentals of why getting oxygen to the baby is necessary for survival. Then, teach the jury about the baby’s oxygen delivery system, which involves the uterus, the placenta, and the umbilical cord, and describe how anything that gets in the way of transporting blood and oxygen to the baby endangers the baby. Explain that medical providers—whose job it is to monitor and protect the baby from preventable injuries—must identify those dangers. Lay the foundation for supportive frames, such as “Do your job,” a powerful statement in a birth injury case.

Teach the jury about the fetal heart monitor—that it is a tool that doctors and nurses must use properly to monitor the baby’s heart rate and watch over the baby. Show the connection between oxygen, the brain, and the heart, and teach the jury that the baby communicates with the doctors and nurses through its heart rate.

Doctors and nurses must understand the baby’s language so they can recognize when the baby is asking for help. They must know the fetal heart rate patterns that indicate the baby may not be getting enough oxygen. Those patterns are warning signs that the baby may be headed for danger. It is the job of the medical providers to use these tools and respond to the baby. “Use the tools at your disposal” is another effective case frame.

Discussing fundamental truths that jurors already know about the need for oxygen for survival engages them in the learning process about how those truths are at work in this case and why this case applies to their lives and matters to them. Ask a rhetorical question focused on a fundamental truth, like, “How important is it that hospitals train nurses to know how to recognize warning signs that a patient is in life-threatening danger from lack of oxygen?”

For each medical term or complicated concept that jurors must understand, you should think like a layperson or ask friends or colleagues what questions someone with little medical knowledge would ask in the learning process. Answer the questions and, in doing so, build the teaching blueprint for what you need to teach the jury and how you’ll do it.

For example, jurors must understand metabolic acidosis: What is it? Why is it important? Is it dangerous? Are there warning signs? Is it preventable? How should it be prevented? What are the standards of care or, in other words, what are the rules that apply to the health care providers to prevent this danger? Why are these the rules?

Simplify the information into a short summary of about one page, if possible. You now have the teaching blueprint for what the jurors need to know to understand metabolic acidosis and to process the evidence.

It might look like this: What is metabolic acidosis? When a baby doesn’t get enough oxygen, a chemical reaction in the cells of the baby’s body produces acid. The acid destroys the baby’s brain cells, causing permanent brain damage. The acid can even kill the baby. When the baby isn’t getting enough oxygen, changes and patterns in the fetal heart rate warn the medical providers that the baby’s life and health are in danger.

Define in simple terms the changes specific to your client’s case, such as “tachycardia,” “decreased variability,” and “decelerations.” The medical providers’ job is to prevent acidosis by delivering the baby before the acid is produced.

Craft the explanation specific to your case’s facts and medicine. Choose your words carefully. The jurors need to know that without oxygen, acid destroys brain cells.

Translate Key Medical Terms Into Simple, Plain Language

Don’t use technical language when simpler terms will do. In the movie Legally Blonde, character Brooke Windham is on trial for murdering her husband. Law student Elle Wood, who is helping to defend Brooke, cross-examines Brooke’s stepdaughter, Chutney Windham.

Chutney testifies that she was home during the murder, but she claims she could not hear the fatal gunshot because she was in the shower, washing her hair. Chutney says that earlier in the day, she “got a latte, went to the gym, got a perm, came home,” and took a shower.

Elle then tells an anecdote about a sorority sister who permed her hair but got her hair wet too soon afterward, ruining the permed curls. Elle asks Chutney why the curls were ruined, and Chutney replies, “’Cause they got wet?” Elle continues the cross-examination, “Exactly. Because isn’t it the first cardinal rule of perm maintenance that you’re forbidden to wet your hair for at least 24 hours after getting a perm at the risk of deactivating the ammonium thioglycolate?” She boxes in Chutney, proving that she was, in fact, not showering while her father was murdered because the curls of her fresh perm are “still intact,” and Elle successfully and correctly pins the murder on Chutney.

Notice how Elle first had Chutney explain the simple reason why the sorority sister’s perm was ruined: “’Cause they got wet.” Elle later explains the scientific reason: because water deactivates the ammonium thioglycolate. Jurors would get lost hearing only that water deactivates ammonium thioglycolate. Saying, though, that getting the permed hair wet within 24 hours ruins the curls by washing out the chemicals is just simpler and easier to grasp.

Make a list of the key medical terms that the jury will need to understand. Translate them into simple, plain English. Talk to your medical experts about the definitions that you want to use to make sure that your simplifications are on point and that the experts are prepared to fully explain the technical medical terms during direct examination. Further, during depositions, ask defense witnesses to agree with the simple terminology. The more disagreement you can eliminate on any topic ahead of trial, the better you’ll be able to focus jurors’ attention on what is simple and correct.

In your opening statement, introduce the technical term, explain it, and then use the simple term. For example, “‘Hypoxia’ is a key term in birth injury cases. The baby experienced hypoxia, which is a medical term for ‘low level of oxygen.’ What that means is pretty basic: The baby wasn’t getting enough oxygen.”

Tell the jurors that although they may not have heard the medical terms before, their meanings are not complicated. Follow the steps of talking about what the term means and then make the term as familiar as possible. We birth injury attorneys often cite definitions from ACOG or AWHONN. Jurors won’t likely know that ACOG is the acronym for the American College of Obstetricians and Gynecologists or that AWHONN is the Association of Women’s Health, Obstetric and Neonatal Nurses. But they have probably heard of the Cleveland Clinic, The Johns Hopkins Hospital, or the Mayo Clinic. Most hospitals provide simple definitions of complex medical terms on their websites. Reference sources that jurors may know of when you introduce the big picture.

Use Visual Aids

Visual presentation is an effective tool to communicate technical terms and complex concepts. Many people are visual learners, and teaching complicated information with visuals can help jurors understand and retain the information better.

Besides being difficult to understand, technical information can be boring. Present a dynamic story with activity and energy to draw in the jury. Think back to your best teachers. Their passion for their subject matter shined through. Visual aids liven up a presentation and allow you and your experts to show and tell the facts and medicine.

Some judges require lawyers to sit at counsel table or stand behind a podium. But most will allow you and your expert witnesses to stand in front of the jury with exhibits. That is prime teaching real estate. Use foam boards, flip charts, and medical illustrations to hold jurors’ interest and help them grasp medical definitions and technical concepts. Other effective illustrations include graphics of a baby’s oxygen delivery system, including the uterus, placenta, and umbilical cord; head ultrasound and MRI images; graphics that show the location and pattern of the brain injury; images of the medical equipment the child will need throughout life; and day-in-the-life photos and video of the child and family.

The fetal heart monitor strip is often the most important piece of evidence. There are companies that create digitized fetal heart monitor tracings in an interactive format that you and your experts can use to teach the jury about baseline fetal heart rate, accelerations, decelerations, variability, uterine contractions, tachysystole, and so on. Interactive fetal heart monitor tracings are very effective to demonstrate and teach the progressive deterioration of the fetal heart rate over time.

Use animations to teach jurors complicated concepts like the flow of oxygen through the baby’s oxygen delivery system, disruption in that flow, and the devastating effects. Animations are expensive and require lead time to construct, so plan ahead. You will likely need to outsource the creation of an animation. Contact the animation company several months before discovery deadlines to ensure that the animation is completed to comply with deadlines for production.

If any physical objects are important to the case, bring examples of them to the courtroom for the jurors to see and touch. For example, if the case involves Pitocin, ask your expert to bring a bottle of Pitocin to the courtroom. You can use an image of a Pitocin vial to explain Pitocin, but show and tell with an actual bottle adds a level of interest.

Focus Group the Case

You do not want to find out after a verdict that jurors did not understand the facts and medicine. As you prepare for trial, use focus groups to learn what your teaching blueprint should include and to test its effectiveness. Run a concept focus group early, even before depositions start, including those of your clients. The exercise of drafting the neutral statement is valuable. It forces you to explain your case in simple, neutral terms. But, you must also explain the defense case. If you know how to build the defense case, you will know how to take it apart.

Unpack the facts and develop simple explanations of medical terms and concepts in blocks of information. Test your definitions, concepts, and visuals. Ask the focus group jurors broad, open-ended questions such as, “What do you think is happening here?” “Where do you think this case is going?” “What questions do you have at this point?” “Have I said any words or phrases that you don’t understand?”

Broad, open-ended questions yield control to the jurors and let them choose what they want to talk about, which in turn reveals which parts of the case they are focusing on, what information they are missing, and how well they understand what you are teaching. When you use a focus group early in the case, you have the opportunity to revise your teaching blueprint and retest it.

Strive to be a reliable, creative, and interesting teacher of your client’s case’s facts, and you will gain juror attention and willingness to learn.

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Laura Brown is the founder of Brown Trial Firm, PLLC and can be reached at brown@trialfirm.com.

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Notes

1. Rick Friedman & Patrick Malone, Rules of the Road: A Plaintiff Lawyer’s Guide to Proving Liability 5 (2d ed. Trial Guides 2010).
2. Mark Mandell, Case Framing (AAJ Press 2015).
3. Rick Friedman & Patrick Malone, Rules of the Road: A Plaintiff Lawyer’s Guide to Proving Liability (Trial Guides 2006).