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August 7, 2013
 Million
Dollar Metaphor
When well-known and widely respected trial lawyer Mitch Jackson, winner of the
2013 CLAY (California Lawyer Attorneys of the Year) award for Litigation wrote
to me for help in developing a metaphor for his closing argument in a recent
wrongful death case, needless to say, I was very intrigued. Happily, I provided
that metaphor and the results were just what Mitch needed to help win his $1
million case.
As Mitch wrote afterwards, “As
soon as the words left my lips, I knew from their facial expressions that my
jury understood the complicated issues and ‘got it.’”
The Facts
In a nutshell, the case concerned a young man, who had been a local high school
athlete and scholar, who was being transported in the back of a non-emergency
ambulance between hospitals. He was disoriented, but calm, and cooperative by
all accounts. In any case, it was required by the EMTs and the ambulance company
to transport him using soft restraints. His restraints were not properly applied
and he escaped and was hit and killed by a car. Mitch represented the boy’s
mother and father.
During trial it was learned that for a 3 year time period before this young
man’s death, the defendant ambulance company had 20 other people escape from
their soft restraints. Despite this fact, they did nothing about changing the
types of knots they used or procedures they taught their EMTS. It would have
required too much effort, training and money. Also, after this young man’s death
(and frankly, to Mitch’s surprise), the ambulance company testified that they
had 10 more patients escape their soft restraints.
Mitch’s expert testified that in 20 years of transporting these types of
patients, he never had a single one become released. The defendant’s expert
testified to a similar track record.
The defendants argued that because they had transported more than 4,000 patients
during this same time period, despite these 30 or so releases, statistically
their success rate was above 99%. The trial judge correctly found that this kind
of argument was totally irrelevant. In his words, “the gravity of one person
escaping their ties and sustaining serious injury would be sufficient to warrant
this case going to the jury…”
The Challenge
Mitch wanted a metaphor to use in his closing argument that would help him put
this 30 release number and the related risk of harm and death to a patient into
perspective. “Was there a metaphor that would jump out at you for the jury?”
Mitch was initially thinking something like, “Putting your head in the
sand... disregarding the facts... profits over people...?”
(What metaphors come to your mind?)
The Million Dollar Winner
Mitch and I discussed these and others and were not one hundred percent happy
with any of them. And then as I thought about the situation and the point we
wanted to make, the winning metaphor came to me. Every time the ambulance
company used their soft restraints, they were really gambling. They were playing
a kind of Russian Roulette, hoping that when they pulled the trigger (put on the
restraints) they wouldn’t catch a bullet (lose the patient). Mitch used my
metaphor this way:
“The defendant ambulance company played ‘private ambulance Russian
roulette.’ They knew that there would be a time when the restraints would not
work and they crossed their fingers every time they used them –hoping this
wouldn’t be the bullet that would kill.”
Beyond the Court Room
As a top litigator, Mitch needs to drive home his legal points for a
jury, particularly when the arguments are complex. He knows that the most
effective way to instantly and dramatically communicate those points is with
metaphors. You needn’t be a litigator, but, like Mitch, if your success depends
on explanation and persuasion, you, too, will benefit from mastering the art of
metaphor.
Make What You Say Pay — With Metaphors.
Anne Miller
P.S. To learn more about the recent verdict, visit…
http://jacksonandwilson.com/negligent-ambulance-wrongful-death
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