By Dr. Ken Broda Bahm:
In liability cases against physicians and other professionals, the plaintiffs work very hard to frame liability as a clear cut-and-dried mistake: The professional did something that wasn’t allowed, or failed to do something that was required. The simplicity of this approach, enshrined in the “Reptile” and “Rules of the Road” perspectives on courtroom persuasion, exists for a good reason: lay jurors are not generally comfortable evaluating highly trained professionals, and it is not natural for them to feel that their judgment is better than the trained professional’s judgment. That is why plaintiffs clearly prefer the message that this case not about a judgment call, but about a clean black-and-white error.
The response is to delineate and defend the zone of judgment. Framing the decisions at the center of the case as rational judgment calls undercuts the plaintiffs’ attempts to oversimplify, while also explaining why other reasonable professionals — like the experts in this case — might disagree among themselves. The message to jurors is that the choices at the heart of the case, even if controversial and even if they now look different in the hindsight of a known outcome, are still examples of reasonable and careful decision-making based on the professional’s experience and training. They’re judgment calls, not mistakes or violations of a “safety rule.” In this post, I will provide some advice for the defendant on using their answers and language to flesh out this zone of judgment.
The Foundation
The foundation of judgment is experience. A professional’s practical background in seeing and responding to other cases over the years is what provides that basis for judgment. That matters more than academic degrees — instead of emphasizing where you went to school, and having jurors seeing you as a student, emphasize all of the years and situations that have built up your experience and judgment. It is also important to strike a balance, coming down on the side of confident humility rather than arrogance. Ultimately, jurors don’t want to hear you say how smart and accomplished you are, but they do want you to show that by giving them good, clear, and useful explanations of the background knowledge they will need in order to make a good decision in the case.
The Process
Even when jurors appreciate your experience, just saying that it was a judgment call probably isn’t enough. You need to identify and explain the steps that go into making that judgment. The explanation, of course, will depend on the judgment that you are talking about, but some common themes that go into explaining your process might include the following:
It is important to get a complete picture.
Every patient, client, or situation is different.
Many factors play a role when coming to a decision.
There are logical steps and a sequence to narrowing down the possibilities for the right decision.
The Result
Even if the decision is not borne out as being necessarily the best one or the correct one when viewed in the context of a known outcome (in hindsight, in other words), professionals are often still able to be confident in the call they made based on the information they had at the time. Defending judgment usually means defending it in the restricted context of what was known, available, and/or believed at the time. Professionals will often need to actively resist the temptation to act as though they had a time machine that would allow the application of present knowledge to past decisions. Setting that aside, the goal is to be able to say that you made the right call, and if today you were armed with the same set of facts and indications, you would do the same.
Ultimately, it is important to remember that this is not a trial on the result, it is a trial on the decision-making. A professional who can provide confident and firm explanations that put that decision-making in the realm of judgment will usually fare better than the professional who falls prey to plaintiff’s framing based on rules and errors.
Other Posts on Professional Liability:
- Consider the AI Influence on Medical Liability
- Med-Mal Defendants: You Want a Jury of Educated Legal Skeptics
- Expect Some Favoritism for Those on the Front Lines