Persuasion Matters

Going to Trial Is Always a Gamble, Even for ‘Bull’

In this week’s episode, “Behind the Ivy,” 16-year-old Antonio Garcia is worried about “making weight” for his wrestling competition. He’s three pounds over his class and has five hours to shed the excess. His coach says, “You know what you gotta do.” And he does.

Dr. Bull counsels grieving clients on whether to take the gamble to go to trial over the death of their teenage son.

Chris Jackson as Chunk Palmer, and Michael Weatherly as Dr. Jason in ‘Bull’ season 4 episode 12. (Photo by CBS Broadcasting, Inc.)

Four hours later, Antonio is running behind the team van wearing a garbage bag. He collapses and dies of cardiac arrest. Bull’s team is hired by Antonio’s parents, who are suing Antonio’s school, Dartwell Preparatory School, and his coach for wrongful death.

Dartwell, of course, wants the issue to disappear, quickly. They’ve offered the Garcias a half-million dollars in exchange for a no-fault agreement. Dartwell claims a heart murmur caused Antonio’s death, and the Garcias failed to disclose the murmur during the admissions process. The parents claim the murmur had never been an issue, Antonio was healthy, and even Dartwell’s own physician gave Antonio a clean bill of health during his pre-admission physical. The parents don’t want the $500,000; they want answers as to why their seemingly healthy son died of a heart attack at the age of 16.

Bull responds:

Once we demand a trial, all bets are off. Maybe we’ll get some answers; maybe we won’t. Maybe we’ll get you some money; or maybe you’ll end up with none.

No Guarantees in Litigation

Anyone familiar with litigation knows there are absolutely zero guarantees when parties go to trial. Whether a case makes it to a jury or not, the process is predictably unpredictable. Emotions often cloud judgment as to the best path for resolution. Often, litigation is more about a person wanting the opportunity to share grief, express anger, find meaning in the unknown, or simply feel “heard.” In the case of Mr. and Mrs. Garcia, it was a mix of all four, and they opted to go to the mat.

In true “Bull” fashion, the writers once again completely ignore discovery or consider actual rules of civil procedure. I found it funny that Bull, et al. seemed to have learned the name of the defendants’ medical expert just minutes before heading to court to pick a jury. Dr. Sarah Barnes is apparently a force to be reckoned with and is known to say whatever she needs to say if she’s paid enough to say it. (We all know that kind of expert, don’t we!?)

Benny and Dr. Bull are familiar with Dr. Barnes and assume she’ll testify Antonio died because of his undisclosed heart murmur. Bull instructs his staff to “comb the internet” for every word she’s uttered or written on the subject of heart murmurs.

It’s always smart to dig as hard as you can for potential inconsistencies of a witness’s testimony. But in the exciting world of discovery (at least in Texas), the plaintiffs would have known Dr. Barnes’s opinions long before the first day of trial. But that’s not nearly as fun as Hollywood gotcha-moments on the witness stand.

While the team is busy sleuthing for data (that should have been known months earlier), Benny and Bull are selecting a jury. (Seriously. They select a jury the same day they learn Dr. Barnes is the expert. M’kay…) Their goal: Ridding the panel of any juror with a bias toward authority.

Generally, I agree with this strategy. Jurors with authority bias are typically more inclined to believe those in a perceived position of power or authority. Key word: perceived. Jurors who view an institution or witness as more elite, more prestigious, more educated, or more credible may lean toward giving Dartwell and its witnesses the benefit of the doubt. Certainly not the jurors Bull wants on the panel.

The Witness Gamble

As Benny and Bull head back to the office, they try to decide who to call as their first witness. (I’m back on my soapbox to say this sort of thing should have been discussed ages ago.)

Benny wants to mitigate the potential power of Dr. Barnes’ causation testimony by calling their own medical expert as their first witness. Not necessarily bad logic. If they can establish right out of the gate Antonio’s heart murmur was a non-issue, then Dartwell’s if-only-we-knew argument loses a bit of power, don’t you think?

But Bull’s recommendation to call Mrs. Garcia first makes a lot more sense. After all, it’s a wrongful death case. And in order to prevail in this type of case, jurors must sympathize with the plaintiff and be at the very least irritated with the defendant if there’s any hope of big dollars. Mrs. Garcia can not only humanize her son, but she can also generate empathy from the jury panel. The emotional hook her testimony could establish from the get-go is critically important.

But it’s also risky.

If jurors don’t like Mrs. Garcia, it could be difficult to regain the jury’s trust. And, if opposing counsel successfully portrays her as knowingly withholding medical information to secure a full scholarship to the school, causation could become moot.

Unfortunately for Bull, this is exactly what happened during Mrs. Garcia’s testimony.

This hit was made even worse after a huge gotcha-moment from the defense medical expert’s testimony. Dr. Barnes didn’t care about the heart murmur as Bull expected; she cared about toxicology reports, which, after her deeper analysis, indicated Antonio Garcia had amphetamines in his system and the time of death, and that is what caused his heart attack.

And just like that, Plaintiffs’ hopes for a nice settlement flew out the window.

Snatching Victory from Possible Defeat

As we’ve all come to expect, there are a few shenanigans in the courtroom. Miracle last-minute discoveries. And judges who are willing to give Benny a bit of leeway.

At the last minute, Bull’s team finds an email from the guidance counselor to Antonio implying Antonio was taking amphetamines with the counselor’s knowledge. Chunk confronts the counselor, who promised that he informed Coach Davis about the drug use. Conveniently, Bull’s team also finds historical data from the wrestling team members showing each boy averaged a 3-inch growth with 0-pounds gained in weight. How could these kids have such a growth spurt without gaining weight? It’s not how things work, and jurors know it.

Benny confronts Coach Davis with the roster information, and asks if he recalls a conversation he had with the school counselor about Antonio. Coach Davis invokes the 5th and the next thing you know we have a jury verdict.

As it always seems to be, Benny and the Bull team secure a victory. The jury found both Dartwell Preparatory School and Coach Davis liable for Antonio’s death, awarded $300,000 in compensatory damages, and tacked on another $5 million in punitive damages.

Jurors may not have fallen in like with Mrs. Garcia, but they didn’t like the defendants either. So long as jurors are more disgusted with the other side than yours, there’s still a chance for victory.

 

 

This article was originally published by Texas Lawyer on January 27, 2020. Reprinted with permission. © 2020 ALM Media Properties, LLC. All rights reserved.

 

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