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Hal Taylor, Esq. Reno, Nevada
PHIL CORBOY Famous Chicago personal injury attorney.
• How many of your law school classmates left school wanting to be trial attorneys?
• How many became trial attorneys?
• Compare those often unfulfilled dreams with how many licensing cases you
will take to hearing in the next year?
YOU WIN!
F. Lee Bailey – Famous Trial Attorney from closer to my generation; handled the Sam Shepard case, Boston Strangler case, O. J. Simpson case, etc.
Picture: F. Lee Bailey on the left, Johnny Cochran on the right, both great trial lawyers. The guy in the middle resides in Lovelock, Nevada, in a Nevada State facility. He is not a lawyer.
At his law school graduation party (He had been a Marine fighter pilot and his unit’s legal officer before he decided to go into law.), an older lawyer gave him a book. Inside he had written a dedication to the effect that:
“When I was a young lawyer, I was very unexperienced, and I would go into court and find myself up against older and much more experienced trial lawyers. As a consequence, I lost some cases that I should have won.
“But as time went on, and I got more experience in the court room, I sometimes found myself trying cases against very green and inexperienced lawyers. So, I won some cases that I should have lost.
“So you see, in the end,
Justice was served.”
Rumpole of The Bailey is a famous, but fictional English barrister who practices criminal law.
F. Lee Bailey is also a famous, though now former, criminal attorney, who was a pilot. He was an English major in college, and wanted to write books, so he became a lawyer, and wrote “The Defense Never Rests,” “To Be A Trial Lawyer,” etc.
Scott Turow is also a successful lawyer who turned to writing;
“Presumed Innocent,” “Burden of Proof,” etc.
Jimmy Stewart, the famous actor, was not a lawyer.
He was, however, a B-24 bomber pilot who flew about 25 combat missions in WWII.
Rumpole is not a pilot, though he occasionally drops verbal bombs on “She Who Must Be Obeyed.”
Joseph N. Welch famously confronted Joseph McCarthy during the Army-McCarthy hearings: “Have you no sense of decency, Senator….At long last, have you left no sense of decency?”
In Mr. Welch’s very capable hands, justice was served. I leave it to you to decide if justice was served by the prosecutorial actions of Joseph McCarthy and Roy Cohen, and whose example you should follow.
Jimmy Stewart
• Played Paul Biegler, a fictional criminal lawyer
F. Lee Bailey
• Was a technical advisor for the trial scenes
Joseph N.
Welch
• A lawyer, played Judge Weaver
I do not know if Mr. Welch, the lawyer/actor, was also a pilot, or a writer. But I do know that he rose to prominence in a famous ADMINISTRATIVE HEARING.
In administrative hearings the ultimate challenge for prosecutors is not whether “justice” is served, but “truth.” If you deliver truth to your board members, justice should follow.
“To live outside the law, you must be honest.”
Bob Dylan
There are two kinds of truth in the world: 1. There is what really happened, & 2. There is what you can prove. In the law, only the “truth” you can prove matters. So how do we prove what is true to our boards?
Who Is Your Audience?
(Assuming that at least one actual
board member will hear this case.)
Each of the following groups needs to be addressed differently.
1. Nursing members.
2. Public members.
3. Judges on appeal.
4. Hearing officers.
Nursing Members: These in many ways can be the most difficult. The level of detail you need to support your factual allegations for your non-nursing audience may prove distracting to these members. And they often bring strong pre-conceptions into the hearing room that may not agree with the legal standards.
Public Members: For those who have no associated professional experiences (As opposed to, say, a hospital administrator, who may not be innocent of medical care practices.), you have to be sure they get enough detail to be comfortable with the nursing members’ findings.
Likewise, Hearing Officers.
Judges on Appeal: Jurisdiction limited to legal issues. More importantly (Other than their customary disinterest in licensing cases.) they will not be able to ask questions to clarify points you have not made clear in your case….. So: make your points clear in your case.
.
Another way of looking at cases that go up on appeal is to recognize that you are actually trying the case to the judge’s law clerk – present it accordingly
Sometimes You Just Have To Say This Dog Won’t Hunt, or
“It’s Only a Small Dog.”
The Watergate Dalmatian Tale –
(Or how I almost got fired by someone famous.)
What Is The Most Important Question on the Minds of Your Board Members
When They See You and Your Opponent Getting Ready To Do To
Hearing?
Why are we here?
What is the conclusion you want them to come to?
Because Respondent’s stubborn counsel would not accept your reasonable offer and settle the case.
How do you plant that seed?
Stating the Obvious:
The Complaint As Trial Strategy
Unlike the Respondent, you actually get to make two opening arguments: 1.The one you make at hearing, and 2.The one you make in your Complaint.
The Complaint is the list of facts you expect to prove, and a map to where you connect facts with the law. So don’t draft it by rote. Ask yourself if this case is really like all the other cases like this you’ve see before.
Treat the Complaint as your dress rehearsal for the hearing. As you draft it, you must already be thinking about how you will tell this story at hearing, who your witnesses will be and in what order, what documents, and other evidence will have to be admitted. And where your case’s weaknesses are.
Put the law references as far away from the factual allegations as possible. The denser and more duplicative the law references are, the more they actually distract lay people during the presentation of evidence.
Ideally, if it’s drafted right, you should be able pencil in comments and exhibit numbers and try your case from your Complaint.
It Sounds Noble, Bit Your Job Is NOT
to Protect Public Health, Safety, and Welfare.
Your job is to win your case. Use the mantra, but identify the good and bad people, and describe the personal harm done.
Timeline
Every case. If you can’t keep the dates and times straight, how do expect your board members to be able to.
Include (For your reference.) the source of each time/place in your Timeline (Operative report, nursing note, etc.) (Only matters if you need to defend your reference – but then it really matters.)
In the Timeline – and on a separate Witness Summary – identify who you will use to get this information into evidence.
Scripts: Good or Poison Ivy
Of the Mind?
Except for questions that need to be stated exactly right for your expert give admissible testimony, don’t script your examinations. It is too easy to be reading the next question on your script and forget to listen to the witness’ answer.
We used to take legal pads full of questions away from young lawyers just before they walked into hearings so that they would learn to listen and think at the same time.
How Important Is Tailoring Your Case to the Standard of Proof?
Totally unimportant. At least until you are on appeal. And if you have not proved your facts by then, the law will not save you.
What If Your Case Depends On Equipment/Websites Working
During the Hearing?
Then make sure they work before the hearing. A story….
Bear Baiting Is Illegal. Some defense lawyers will try to rile you up, suck you into a fight. They can only
do that if you let them. The “Payment for
Professional Services” story.
A Defense Attorney Reveals a Secret.
Which prosecutors are the most dangerous?
Hint: They never yell or pout or whine. Another Hint: When they do, the whole room goes quiet.
Examples: How do you prove a boundary case without a boundary statute and the patient was no longer a patient? Here is how John Goldberg and I did it a long time ago…..
Drug Diversion Dases: What do you have to do to destroy the most popular Respondent defenses: Someone stole my password; I must have left the machine open by mistake; the pharmacist must be diverting –
Guess which one was true.
Make sure the board members don’t forget the victim.
Remind the trier of fact that even if the Respondent is a sympathetic character, someone still pays the price.
NOW:
Tell Us the War Story You Have Been Dying to Share
Citations
“To Be A Trial Lawyer” by F. Lee Bailey, Telshare Publishing, Inc. (1982)
“Anatomy of a Murder” by Robert Traver (Who was both a lawyer and a writer.), St. Martin’s Press, 1983, and
“Anatomy of a Murder” Columbia Films/Carlyle (Otto Preminger) 1959
“Reasonable Doubts” by Alan M. Dershowitz, Simon & Schuster, 1996
Anything by the late, great John Mortimer, author of the Rumpole stories and a fine barrister in his own right. Likewise, Scott Turow (Name drop moment.) who heard my first oral argument in law school. By the way, ask me how good a lawyer he is.
