In this episode, host Brendan Lupetin explores what is often the most gut-wrenching part of a case: waiting for the verdict. To do so, he invites the trial team of Andy Delaney and Jack De La Piedra for a step-by-step breakdown of their recent wrongful death case against the operators of a Florida nursing home. They represented the family of a woman who died after a bedsore went untreated and wasn’t even revealed to the patient or her family. After trial – which included a six-minute closing and a three-minute cross-examination – they were at lunch when they got the call. The jury was returning. Tune in to hear what happened next.

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Episode Preview

• Jack De La Piedra and Andy Delaney met at Trial Lawyers College in 2015 and have tried multiple cases together through their decade-long friendship.
• Jack and Andy represented the family of an 87-year-old woman who was in a Florida nursing home when she got a Stage 2 bedsore that neither she nor the family was told existed. Over 10 days at the nursing home, her health deteriorated; she died after finally being taken to the hospital.
• In voir dire, Jack asked the entire panel if they had heard the phrase, "If it wasn't documented, then it didn't happen." Every hand went up, establishing the theme that would carry through the entire trial.
• Jack's opening featured no PowerPoint, just a flip chart, two rules, and a physical reenactment on a rolling utility cart that showed jurors exactly how the patient was suffering in her bed..
• In Andy's three-minute cross-examination of the corporate representative, he asked one question: Did he believe the operators of the nursing home were negligent? The response was a flat "no.” With no further questions, Andy let the answer speak for itself.
• Jack's closing argument ran just six minutes, skipping the evidence recap and focusing on the heart of the case. The defense counsel's attempt to mock its brevity backfired and made their own position look weaker.

Ready to refer or collaborate on med mal, medical negligence, and catastrophic injury cases? Visit our attorney referral page at PAMedMal.com/Refer. We handle cases in Pennsylvania and across the United States.

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I guess sort of prevailing wisdom is if they call you back quickly, sooner than later, then it's a good sign. So we kind of rushed through lunch a little bit and wanted to get back.

It really is just a number, but that number signifies that we heard you.

Welcome to Just Verdicts with your host, Brendan Lupetin, a podcast dedicated to the pursuit of Just Verdicts for Just Cases. Join us for in- depth interviews and discussions of cutting edge trial strategies that will give you the keys to conquering the courtroom. Produced and powered by LawPods.

All right. Welcome back to Just Verdicts. I'm your host, Brendan Lupetin. And today, excited to have with me, Jack De La Piedra and Andy Delaney. And he's from Vermont and Jack is from Florida. And we're going to talk a minute about how these guys came together on this great nursing home verdict. But I want to mix things up a little bit today. And I was sort of thinking about a lot of cases I've tried and the most almost gut wrenching part of the case is waiting on the verdict. So wondering if you guys could take us back to the sweat of you've closed, you no longer have control of the case, it's in the juries. What are you guys doing? Are you with the family? Are you just pacing out in the hallway? You feeling calm? Are you feeling nervous? What's going on?

Yeah. So we went to lunch and I felt like we had won the case, but I wasn't sure. And I knew that, I guess, sort of prevailing wisdom is if they call you back quickly, sooner than later, then that's a good sign. And so we kind of rushed through lunch a little bit and wanted to get back. But we got a call and so we get back and a couple of the family members who we represented weren't there yet, but when we finally got in the courtroom, they bring in the jury and I'm just thinking, God, just yes to that first question on liability. If it's a yes, I don't care what the number is, is what I was feeling. And there were three blanks because there were three surviving children and the first number was $2 million. And I was like, "We got it.

" Because there's two more blanks and it's not hard to do the math. But yeah, it was intense. It was a very intense moment, but it was just a relief.

Now, I'm interested to hear that. So your feeling has been generally that if it's a quicker deliberation, that that's a good sign for the plaintiff?

Yeah.

See, I've always been of the other mind. If it's quick, it means it was easy for them to answer no and move on and they don't have to think about causation or damages or anything like that. That's

True. Good point.

I think you have to go back to how we tried the case. I mean, we tried the case fast. We didn't waste any time. We got it in. I would say our case was less than a day. The defense case was about a day. And so when they didn't take a lot of time to come back, I think we were already fairly certain we'd won in this case. That's not something I usually have, but we knew we had done a good job and we knew that the jury was with us when we left the courtroom. And we'll get into it later, but there's some stuff that we did that would certainly go against conventional wisdom.

Well, yeah, let's put a pin in the efficiency and speed with which you tried the case. And I think it'll become apparent how you could feel so confident that you were going to win. I can't say in just about any of my cases that I felt supremely confident I was going to win, but it seems like something happened here and you guys were feeling pretty good about it. But let's take a pause and talk briefly about you two guys. So Jack, Andy, I read about your verdict on one of the med mal listservs I think we're all on and was intrigued by it. Great verdict. And I think you were posting some questions about it. So it was the Karen Roberts as representative of Fay Butts versus ... It sounds like you listed the corporate entity. Who was that?

Well, it was Duluna Health and Rehabilitation Center. That's the fictitious name that they do business as, but it was DeLuna Operating Investments, LLC was the licensee that we sued.

So before we get into the facts of the case, why you took it on, Andy, you're up in Vermont. You do mostly med mal, right? Or kind of whatever strikes your fancy.

Yeah, I do a mix of everything you have to in Vermont, and I do a lot of car crashes and also a lot of men mal.

And Jack, you're down in Florida. This seems like you do predominantly nursing home, right?

Yeah, 100%.

And I'm gathering and reading both of your bios that you guys were, it seems like everybody who went to Trial Lawyers College is a zealot afterwards. And certainly you guys seem to be no different in reading your bios. So unfortunately, I'm a trial junkie and I've tried to go to just about every different type of seminar that's been out there and I always wanted to make it to TLC, but I never did. I'm curious, when did you guys go and talk to listeners who haven't been before, sort of the impact that it had on your respective practices and approach to trying cases?

Andy, why don't you go ahead and go? Yeah.

So we went in September 2015 and we were in the same small group initially during the first week. And so Jack and I, I think we just started talking and I think that was the point that we started picking on each other. And we got to know each other over our three weeks there. We would hang out, go into town, goof off, hang around the campfire. We did all kinds of things together and just got to know each other and we became good friends, I would say at the college. And then afterwards we stayed in touch. We've tried other cases together and we have pretty much been giving each other a hard time every day for the past 10 years in one way or another.

It's our love language. It makes for trying cases so much fun though. And if you have a buddy like that, you can try a case with, "I highly recommend it. " It literally, it didn't feel like a vacation, I wouldn't say, but it was wonderful to have Andy down here and just doing this trial together. So it was great.

One of the things I would say about Trial Lawyers College is it gets you comfortable in your own skin. And that's really important in the courtroom, being able to be yourself and still try a case. I wouldn't say that Trial Lawyers College is going to give you any of the nuts and bolts generally. Generally, it's more a 30,000 foot view, how to frame things, how to get in touch with your own feelings about the case so that you can express that to a jury and tell stories in a way that resonate with people. There's no trick to it, right? That's the thing. The trick is that there are no tricks. And I think a lot of people are, not a lot of people, but certainly when I went, I was looking for magic beans. I wanted something that was going to just make me instantly this awesome trial lawyer.

And then you get there and the surprise, the magic beans are there are no magic beans. You've got to actually figure it out for yourself. And I think one of the sayings is it all begins with you, but it's not all about you. And I think that's one of the important things you learned there. And you go through the paces too. You do jury selection, you do opening statement, you do a lot of the skills work. And I would say the three week is especially intense. I had actually just found out by mistake what the golden rule was when I went. I had only tried a few cases when I went out to Trial Lawyers College. And then I had just that previous trial, I thought I was going to be the biggest loser when I got out there. I was trying a criminal case ahead of time in August of 2015 and I was sure I was going to lose it and I was going to have to go out there and be like, "I suck.

Everybody's better than me. " But luckily I actually won that case. But my closing argument, I got up and I said, "Ladies and gentlemen, I want you to put yourself in my client's name's shoes." And the prosecutor jumped up and said, "Objection, golden rule." And the judge called me up to the bench and he was laughing. He was like, "Mr. Delaney, you can't do that. "

It's funny though, I don't remember ever being told about that in law school.

No. No.

I was heading into one of my first trials and I remember a somewhat older associate who knew I was going to trial. She was just sort of jokingly like, "Oh, just don't remember not to violate the golden rule." And I sort of just laughed along like I knew what she was talking about and I didn't. And fortunately I didn't do that. I don't think I was smart enough to realize what a potentially persuasive tactic that was. And then years later, I sort of heard somebody else mention it and I had the courage to be like, "Hey, what is that, by the way?" But back to TLC, when you talk, Andy, about getting comfortable in your own skin and it starts with you, but it's not all about you. I mean, from your guys' perspective, I mean, how would you sort of explain that before and after TLC?

Was it, you thought you were putting on heirs beforehand and it helped you become comfortable just being regular old Andy or Jack like normal in court or is it something else?

So what I would say is that when I would step into a courtroom, I would change before TLC. I would try and change who I was. I had my scripts, I knew what to say and it was kind of like armor, right? You go in there, you know the script, you're able to, for example, do an arraignment, you can rattle off what you need to do for criminal arraignment or you can speak in a lawyerly way and go into the courtroom and I would become lawyer man because that's what I thought I had to do. And the judge was this powerful person who could end my career at any moment. And that still may be true, but after TLC, I was able to go in and be more myself. Not my entire self-mind you, because that can get a little hairy, but I was much more able to let a little bit more of my personality come through and not worry so much about it after TLC.

Jack,

How about you? What did you notice as far as that concept and the impact, if any, it had on you? Because I think in my estimation, it seems like some people are much more naturally comfortable just from jump street compared to others. But Jack, did it have a profound effect on you and was it what Andy's talking about or was it something else?

Yeah, the authenticity was emphasized. They have you do things that break down that facade, things that are ... It's not like hazing or anything like that, but just exercises at the college that really do break down that facade. But what I would add, I guess, to what Andy's saying is the Trial Lawyers College normalized loving your clients, and that is something that I think is central to authenticity, good representation. So just imagine if you're the jury and you're trying to decide whether to give someone money, they're looking to see whether they deserve it or they are good people. And if by your example, they can tell that you actually love these people, it's almost like you're sort of a form of sponsorship. If they can see you love them and that they're worthy and that they deserve money, even though the case might not be about whether they deserve it or not, right?

But the jury has to see that someone cares about them. It's just helpful, I think. And so Trial Lawyers College for me was about learning to ... I knew I needed to love my clients. I knew that was very important, but it normalized it. It's almost like the takeaway from the Trial Lawyers College for me was kind of like, "Well, if you don't love your clients, what are you doing? Pick a different job." And I think that's really important.

Jack, do you think it's a prerequisite though? Because yes, on the plaintiff's side, we do get to, much more so than the defense side, pick our clients and choose who we want to represent. But I have to imagine you guys have had the experience I have that occasionally you take on people that have a righteous case, but whether it's ideologically, personality wise, something you don't necessarily see eye to eye or you don't get along. And so I guess the question is, do you have to find a way to love them or can you still properly and adequately represent them even if you don't like them all that much? And is it then just a matter of being upfront about it and just being real with it like, look, we don't get along that well, but they've got a legitimate case that I believe in kind of thing.

Well, to know you is to love you, right? I think there is something about everyone that is lovable. For me, it is a prerequisite. I don't think I would go to trial with a family that I didn't love. And if that means I have to spend more time with them, then I will. But is it a prerequisite? I mean, it's not a black and white rule. And I think that people have obviously had success and gotten nice verdicts representing folks who they didn't love per se, but maybe cared about or felt they deserved representation and that their injury or whatever happened was so bad that it was not something you definitely should go to trial on, right? But for me personally, it's hard for me to ask for ... In this case, I asked for nine to 18 million dollars and I don't think I could have asked for that much if I didn't love them.

I hesitate to say close family members, but just like other people that I love in my life. But I spent time with them and got to know them and there's a lot to love.

Well, on that point, why don't you tell us about Faye and obviously I think always the weird thing in death cases for us attorneys is that you want to talk about you got to love the people that you're working for. And the weird thing is you hear all about how wonderful this person was, but you never got to meet them because inevitably they've always come to you after the person's already passed. That was the reason why they sought your legal counsel. So the death case is always find kind of peculiar in that sense and a little bit sad because oftentimes you hear all this great stuff, you see these photos and you're like, "Dang, I wish I could have known this person or met them." But tell us about Faye and her family.

What I do is I take with me, I think it's a list, I think it's about 15 questions now that are very penetrating, very revealing of the relationship of a mother and a son or mother and a daughter, father, son, father, daughter. And the answers to those questions say a lot about, in a deep way, what the relationship was based on. Now this woman in particular, she was the quintessential Southern matriarch. She exuded grace. The daughter told me that she never made her feel embarrassed. She was 100% all about the family. The son recounted a memory from his childhood where the kids would be together and Mrs. Butts would be ironing their clothes. And she would be singing hymns and then she would pause and she'd be humming. And he questioned her about that later as an adult. And he broke up and got very emotional and he was talking about this at trial.

But he said that his mother told him that when she was ironing his clothes, she would stop and pray for him. Then when she would move on to his sister's clothes, then she would use that time to pray for his sister. So she's a very prayerful person. And that was just one thing, one takeaway that he had about something that he grew up with. And so now he does the same thing for his family, but it was a very touching story. But what came through loud and clear was how much she loved her family and how she was always there for them, always thinking about them. The photographs that I chose to use, a lot of them involved her and her great-grandson, so the son's grandson. And I asked him, "Would you say that you learned how to be a better grandfather by watching or how to be a good grandfather by watching your mother be a great grandmother to your grandson?" Absolutely, of course.

And some of the takeaway on damages was the nugget is that we learn the guidance part. It's tricky, right? So how can you establish that you've been instructed or learned from your parents without making it sound boring? Well, we learned by watching people. And so they learned how she dealt with her fall and hip surgery and she learned something about their mother just watching her in pain. And she was always very graceful. She was a very private person, but we learned by watching and the photos captured a lot of love and light and joy between her and her great-grandson as well as the children as well. So I think that's a longer answer to a simple question.

No, I mean, it kind of goes back to what you talked about TLC. It starts with the love of the ... You got to love these people and how do you do that? You dig into the real story about them and inevitably you're going to find threads of things that resonate with you, I would think, right? And then you develop that connection with them. And in regard to those 15 questions you talk about, Jack, a couple of things. One, have you sort of created those yourself over time?

Yeah. And I'm happy to share those with plaintiff's counsel. I developed them, I used AI. I had some and then they got better through AI. They're very revealing. I don't want to give them away, but they're quite good and half of them usually will trigger tears and a lot of emotion. And so I make note of which ones are really powerful and I ask those at trial and I limit it to about five or six of those questions and they come toward the very end and they stand in stark contrast to some of my closing questions, which are typically about, "Hey, did the nursing home ever reach out to you while your mother was in the hospital to see how she's doing?" No. "Did anyone from the facility send a sympathy card?" "No." "Did anyone at any point from the facility ever apologize or do anything to show that they cared about your mother after she was taken to the hospital?" "No." That says an awful lot, especially those questions very powerful coming after that section where we're talking about things that really matter.

You really get to the part of the issue on damages, the values and things like that.

So walk us through a little bit about, you have this family and they obviously love, love, love their mom dearly, mom loved them, very tight, warm family unit and unfortunately Faye passes under these pretty grizzly circumstances. What was the purpose of why they came to you in the first place, Jack? Was it just to get rich or was it something more? Seems like it wasn't just about the money in this case.

It's always about healing and closure, always. It's never about the money. So in a sense, the judicial system, the civil jury trial system is set up to reflect a sense of justice that is actually then perfected by mercy. So in my view of the civil jury trial is that it's justice perfected by mercy, but it's never about the money when people come. It's usually about, well, it's about their healing and closure, and they always hear families tell me that they just don't want this to happen to someone else. So there's a sense of love for your neighbor, for other people that is at play in the motive for litigation.

And how about this family? I mean, it was probably a mixture of everything, right? Accountability, closure, making sure this doesn't happen again. Did the family have a good sense of why this was wrong or were they really looking to you, Jack, just with a sense of, this feels like she shouldn't have died this way, but what do we do?

Well, the son in this case was one of those types who has very strong feelings about litigation. He doesn't think it's ... I want to say that I remember a conversation with the family where he was the one who was like, "Yeah, I think suing people is wrong." And just had very strong, I'm not sure they were religious reasons, but he was not the type that Sue, even if something bad happened to him. But in this case, photograph that his wife took of his mother's bedsore was so horrifying that he made an exception. And I mean, I shared the ... It was a truly horrifying photo and no one should have to live the rest of their days with that image in their mind linked to the memory of their mother.

So what happened? I mean, tell me the story of what you guys ... How did you frame this case to the jury about what happened to Fae?

Andy, do you want to take this?

Yeah, sure. So I think the first thing is that she comes into their care, into Diluna Health's care with a bedsore, a stage two bedsore, which the defense made sure to point out looked to be a deep pressure injury. And that's important later on. But one of the things that we noticed when we went through the records and went through the reports is that there really wasn't any care documented. Her bedsore was mentioned maybe six times in 640 pages of medical records. 640 pages is a little bit of an exaggeration, which we did eventually demonstrate for the jurors. One of the things about this case was that they had policies that when somebody had a bedsore, they were supposed to measure it and photograph it, document it, make sure ... See whether it's healing or getting worse and decide accordingly how they're going to take care of it.

So if it's getting worse, you call the doctor. She had an episode of pneumonia in the hospital. And of course, the defense made a big deal out of that. We were given her antibiotics and she was getting care. And here you go. It's mentioned in the medical record that we took care of it. But if you look closely, there's supposed to be daily skin checks, for example. And when they were documented, what they said was nothing of note, right? There was a specific code that said nothing of note. And so sort of the juxtaposition of the care that they claim to be giving her, right? They said, "Oh, we were frequently turning and repositioning her." And there's no turning and repositioning log. Not that that's required, but at the same time, you would think it would be in some of the notes once in a while, right?

There's 640 pages of medical records. There's really nothing. There was nothing about even giving her a shower or a bath over this 10 day stay. And so the records were really quite sloppy and they certainly didn't show that any care was provided. And so again, the defense position was, "Oh, we did, and we're not required to, so whatever, you can't prove anything." And I don't think the jury took that well.

Yeah. That and also whenever there's a changing condition, the federal regulations require notification to the resident, to the physician, for the resident and the family. And this family found out about the bedsore, including the resident. Mrs. Butts did not know she had a bedsore the entire time she was there. The family, and they all found out at the hospital when the hospitalist, when the nurse was examining her, and she's looking at this, she's like, "Oh my God." And she has this look of disgust on her face, right? And the son's there and she's like, "Have you seen this? " And he's like, "Seen what? " She's like, "This bedsore." And he's like, "What bed sore?" And his son was there. He didn't want to look at first, but his son looked at it and he teared up and was really emotional. He loved his grandmother.

This poor woman thought she had hemorrhoids. She thought that's where the pain was coming from. And she had asked her daughter who was visiting after her work to put some hand lotion on her hemorrhoids. And this was really out of character for her because she was a very private person. And so the daughter was like, "God, I figured she was in a lot of pain." But then there's bandage over it, right? And she assumed it was from something to do with the hip surgery, because she had fallen and had hip surgery and was in there for rehab. And so she didn't want to mess with it. They're relying 100% on the expertise of the facility. And so she assumes that whatever's going on is under control. As the 10 day residency, it's not really a residency, I hate to call it that, but her 10 day stay there, they started noticing that she would reach over on the side of the bed and grab the bed rail and kind of pull herself toward it.

And what she was actually doing was offloading pressure where the pressure ulcer was, which is on a rear. And she was doing that a lot more frequently as time progressed. And so you could tell that her pain was increasing. And then that was reflected in the pain scores and also the white blood cell count started to go up. And so we're able to track the progression of the pain and the deterioration through the white blood cell count, the pain scores, and the observations of the family. To think that they had no clue that she had a bedsore that was just rotting and becoming worse and worse and worse over these 10 days is shocking and just unbelievable. The son said on day two, the therapist was in there with him and noted that she had a little bruise on her bottom. A bruise is the word he used to describe it.

Of course, he didn't think anything of that because bruises heal, right? I mean, that's not a big deal. And so that aspect of it, I think, contributed to the amount of the verdict. But in this way, when Andy cross-examined the director of nursing and the corporate representative, the way they handled that was so heinous. They were so casual about their failures, all of the failures and documentation, but so confident that they did nothing wrong. In fact, Andy asked them point blank whether in light of all of the testimony, the record, everything we know about it, do you think the facility was negligent? And oh, talk about double downing. "No, not negligent. "And then he went on how they have a five star review. Of course, we were ready for that. And then it's like, " Oh, that's not a Google review. "I'm talking about the regulatory five star because the Google review, he had to admit had gone down from five to 3.2 and there are 53 reviews and he says," Oh, those are from angry family members.

"And he's like, " Oh, you got a lot of families angry with you. "And he's like, " Well, I don't trust those. This is angry family members. "I'm like, " Man, you are digging yourself a serious hole. "I mean, you couldn't have given this guy enough rope that he just said one wrong thing after the other as far as their physician was concerned. And you can't behave like that. I mean, no one said they're sorry. The case ultimately was about systemic neglect. I made this point in my closing that the case was never about one person making one mistake on one day. If that'd been the case, and especially if that person had admitted they did something wrong, apologized, said they're sorry, and asked for forgiveness, this family would've forgiven them and we wouldn't even be here, but that's not what the case is about.

Oh, the case is about multiple people making multiple bad decisions on multiple days. The case is about systemic neglect and you can kind of start to track their eyes and there's a couple very slight little head nods like, yeah, exactly what this case is about. So yeah, keeping the family in the dark. I mean, who does that? Ridiculous.

How did they defend? I mean, just fact of the matter that she comes in with a stage two, which for non-decubitus ulcer nursing home folks listening, how was that defined versus the basically unstageable or stage four at a minimum sore that she developed over 10 days, which it seems like an extraordinary short period of time for that to deteriorate so quickly.

Right. Well, the difference between stage one and a stage two is the skin isn't broken on stage one. It is on stage two. But stage two pressure ulcers are curable. You just have to offload pressure every two hours as standard of care. If you do that, it's going to get better and all will be well. But if you do nothing, it's just going to continue to get worse and worse and worse. So they tried to suggest that her advanced age, she was 87 and the end stage renal disease, she required dialysis three times a week. They tried to suggest that she was not someone who was healthy enough to recover. And then this was just a symptom of a natural decline. But you point in closing to say, "Yeah, well, so what? So she has six months left to live or two years, but how one dies matters.

And when you come to the end of your life and there isn't a lot of time left, time is precious." And that's exactly what they stole from this family. And in exchange, they left them with the worst possible memories and images that a son and a daughter could ever have linked to the memory of their mother. So it was that, and then the evidence of neglect, which was extreme in that case that supported a large, large verdict. So I think when a facility makes that argument, they do worse. When they make it about, well, she didn't have much time left anyway. So what are you really saying when you say that? It's really one of the dumbest things defense counsel can say because it opens up the counter argument, which is by far more powerful and persuasive. So they made it. I guess the rest is history.

In addition to that sort of probably tactical mistake and the director of the corporate rep of the nursing home's sort of callous testimony, what would you say were the other sort of like turning points where maybe you could see the jury nodding along or back to where we started that you guys felt so confident in waiting for that verdict that you had won. It was probably more just a matter of how much. What was it about the case that struck you that you were feeling like this jury was definitely with you?

Okay. And I'll answer quickly, but then I want ... So I think there are four things that did well. The first question, this was Andy's idea. The first question I asked in ... Well, not the first question, but one of the early on in jury selection, I asked who here has ever heard the expression if it wasn't documented and that it didn't happen. Literally everyone raised their hands. And the second question is like, okay, which context have you heard that? And so I mean, it was not just the medical field, it was like all professions, everyone has heard that. And that was really the theme of our case. So early on, the entire, all 35 or 40 of them are all on the same page on. So that carried through all the way. So I think that was important.

And just real quick, Jack, and your take from that when everybody sort of just across the board were all familiar with that, did you feel pretty ... Because there are some people that, "Yeah, I've heard that before, but I don't necessarily think that that means it didn't happen." Did you get the sense that most everybody felt that, look, if you didn't document it, then you're kind of stuck and didn't happen then?

Yeah. So I drilled down on that and the consensus was that if something happened, it was documented. And if it wasn't documented, it just didn't happen. So that was really important. And then I think another significant thing that we did right was in my opening, I always show what happened. And I'm usually out of breath by the time I ... But I have this cart that I love and it caught a lot of flack from the court, from Andy. Everyone makes fun of my cart, but that cart does an awesome prop. And so what I like to do is open the scene, create a scene.This involves an elderly woman in a nursing home, and this is her room. And then I transform the courtroom into the actual room, show where the entrance is, where the hallway. And the entrance, I start just right across from where the jury box is.

So the jurors are right there. They're walking into a room, bathroom's here, the bed's over here, and the chairs, the TV across from the bed, so they know where everything happened. And then I move my cart to where the bed is. And so the part where she's grabbing the bedroom, I hop on my cart and I'm pulling myself and I switch sides so they can see from both angles what that looked like because I know they're not going to forget that. And that's very important.

Wait, what kind of cart is it, by the way? Now I'm intrigued.

And it's just really cool cart. So it can hold 800 pounds. I think it's a ... What's the brand? Is it a Rubbermaid? Yeah, it was like 700 bucks, but it's cool because you can fold it down and you can fold it all the way down where I can put it in the back of my car.

So it's like a janitorial card or something?

Yeah. I mean, you could probably be used for something like that. Yeah.

I think I see it. Okay. Yeah. It's like four wheels, like a box, almost a hollow box.

Yeah. So it's not enclosed, but I found it on, I think the website is Uline, I think is the-

Yeah, I'm looking at the Uline.

There you go.

Utility carts, 45

By 25. Yeah.

Damn, you must have bought a nice one because most of these are like 350, 400. You got nothing but the best for Jack.

Oh, this one's a nice one. My splurge is on my car.

Very nice cart. I'll stop making fun

Of it. Yeah. Give the cart some credit. So I acted out and I'm huffing and puffing. I mean, I have a little teaching moment before I do that so they understand the context of ... So they can say, oh yeah, based on that rule that I just told them, and I use the flip chart, I don't do any PowerPoints, nothing like that because wherever your eyes are is where they're looking. So if I'm trying to talk to them and I have a PowerPoint, they're looking not at me, but they're looking somewhere else or there's disconnect. So I always use a flip chart. And I go through this little teaching moment where we talk about the rules that apply and I keep it real simple, two rules in this case, and then I show them what happened. And so now they know what the rules are and they can say, oh, well, they should have done that.

And so going all in on showing what happened is I think really important because when you sit down and then they get up and all they're doing is talking, they have nothing to show. It's like, well, you're not going to remember, you're going to remember what you saw, but you're not going to necessarily remember what you heard

As well. And then Andy's cross examinations were brilliant. I don't know that I will ever see any ... I mean, don't let this go to your head.

Oh, I will.

He is masterful on cross. I mean, you can't tell from this podcast, but he's six foot three, he's a slow speaker, has a deep voice. And there's like a comedy to his tone that's unintended that works really, really well. And so he just slow rolls these like almost like a bow constrictor, just this slow grip that gets tighter and tighter and they don't see it coming. And he just completely takes apart. He didn't wrestle with the doctor, their causation expert. He didn't wrestle with him on the medicine. He just completely destroyed the basis, the record that it was based on. So Andy's cross-examinations were longer than their directs, but they were entertaining because it's not something I think you can teach someone because he's just entertaining to watch. And then my closing argument was six minutes long. That's it. The first thing defense counsel did when he got up after me was to criticize it and say, "I'll have all this experience and that's the shortest closing argument I've ever heard." But he did not know how to handle it.

And it was on the heart. I didn't re-litigate the case. We didn't go into evidence or anything like that. And I mean, it was like a fish out of water. It was like 20 minutes of him trying somehow to undo what was already done and it made their position look even weaker. So in fact, when the judge asked, "How long do you need for a closing Mr. Lapio?" I'm like, "10 minutes max." And so defense counsel's like, "Well, I'm going to move." He says he wants to move prophylactically to disallow me from then coming back after he sits down and then spending 30 minutes. He thought I was going to sandbag him. And so after he sat down, the court's like, "Anything further?" I'm like, "Nothing further." And it was it. I'm like, "I told you I didn't need more than 10 minutes and I did not lie."

So you could have done rebuttal and you were like, "I'm good." Yeah.

Not necessary. Yeah. His closing was my rebuttal. It was his closing out of my rebuttal. So I just let it be.

So let me break down a couple sort of more granular things going back with sort of covering the big points of why you guys won. In your opening, Jack, with respect to the flip chart, I know this is super granular, but do you write out the rules ahead of time or do you do them in the moment?

No, I do it in the moment. So I have a magic marker or whatever.

And is your approach ... I know everybody's always kind of, everything's changing and modifying, but you hear rules, you think of Friedman and Malone, and then you think of reptile and edge and so forth. And then when I hear teaching section, I'm thinking sorry, delamod and with the chart and so forth. And so you're basically writing rules up there and then are you kind of expanding on them as part of the teaching section like nursing homes are taught such and such or they're required by federal law to do X, Y, and Z kind of thing as the comparison teaching section?

Yeah. So I use Sari De La Not's Hostage to Hero Method with some tweaks here and there, right? I think it's the best I've come across and it feels the most natural to me. When I do the teaching section, I like to go back, especially, I think this is probably important in conservative communities, I start by saying in 1987, Ronald Reagan signed into law a huge collection of federal regulations called OBRA. And then part of that is the Nursing Home Reform Act. And then part of that is are these quality of care standards and residents' rights. And there are two, there's one quality of care standard and one resident right that applies in this case, and I just write it out. I don't write the whole thing out. I just write like a word or two and I say what those are. But before I do that, going back a little bit, before I do that, I first start out with a hook.

And I think in this case I said something like, "Nursing homes must protect its residents, must keep its residents safe by providing appropriate wound care," something like that. Something real simple. It doesn't really matter what it is, just something to the point. And then I tell the jury, "I'm going to show you what happened in this case. I'm going to show you and tell you, like show and tell. I'm going to show and tell you what happened in this case, but before I do that, there are a couple things you need to know in order to do your job." And then that's when I go into the teaching part, right? And then when I'm done with that, start with the story. And that's when I start running around the courtroom and trying to be theatrical, I guess.

Gotcha.

But not in an authentic way.

I get you.

You can't be a medical head and expect to maintain credibility.

So then Andy, regarding your cross-exam approach, do you have a set outline or do you more in your head have these are sort of the points that I want to get to through questioning, maybe with your particular documents and so forth that you're going to confront people that you know they can't run from so much?

Yeah. So yes, is my answer. One thing I will do is have a complete outline and I'll have my little traps and all that sort of thing. And then that's a lot of headwork. And it's essential to do that kind of in your head work ahead of time because it allows you to be spontaneous when you're in the moment and cross-examining these folks, especially when there's a little thread that you want to follow, you've already gone down those threads and you know where they end and you're able to pivot because I'll have an outline and I might use 10% of it, I might use 50% of it, I might use 75% of it, or I might use almost none of it. For example, with the corporate rep, I had about seven, eight pages of questions for him. And these were based on his deposition and the records and there was all this stuff I had that I could catch him on.

He got up and he testified on direct and it was very laudatory about the nursing home and how much they care and what a great job they do. And boy, really disappointed that the family didn't make a complaint and he would have done something about it if they'd made a complaint, but they didn't even complain. So how was he supposed to know that anything was wrong and so on and so forth. At that point, we had already rested our case and I'd gone after the director of nursing probably a little too hard. And that's one thing I do want to emphasize is like the cross-examination is it's blood sport, but don't keep going once you have the points.You don't need to beat up on a witness. One, to make your point and two, sometimes you can't help yourself. And I did feel like I got carried away with the director of nursing.

She was ticking me off. And she's saying things like, "I don't understand your question." And I might have gotten a little exasperated at that. I didn't say anything like, "Well, I'm speaking English. Do you understand English?" What I wanted to say, I didn't say it. I just said, "Okay,

I'm going to repeat my question." And I try very hard to stay calm. I think it's important to not ... You don't want to show off that you're smarter than the witness or you have a better ... You don't need to show off to be effective. What you can do is you can expose things in a way that isn't ... It's not nasty, right? You don't have to be nasty. And I think I went a little too far with her, but with the director, not the director of nursing, the nursing home administrator who was also the corporate rep, when he got up there during lunch ... Or actually, no, it wasn't lunch, was it? It was just like a morning break. It was a couple minutes. And we were outside the courtroom in our little room and we're talking, I've got this whole outline and we go through and we're like, "Why don't we just establish that he's the corporate rep and why don't we ask him whether after hearing this evidence, he's willing to admit that Deluna was negligent in its care of Fay Butts." And it was Jack's idea and I was like, "You know what?

That's pretty good." And so that was the whole cross-examination. Now there was a little outtake that was pretty great. We won't get into that, but he didn't want to admit that he was the corporate rep at first, right? We've got a pretrial order that names him as the corporate rep. He's like, "Well, I'm here as the administrator of the nursing home." I'm like, "Well, yes, but you understand that you're the corporate rep." And anyway, we had to have a little bench conference and then he's finally like, "Okay, if it makes it easier, I'll admit that I'm here on behalf of the corporation." I'm like, "Okay." And then we go through it and his entire cross-examination was like three minutes just now that you've heard everything or you've heard this much, are you willing to admit that DeLuna was negligent? Oh no, absolutely not. And the thing is, is there were plenty of follow-ups, right?

There were a hundred follow-ups. I could have been like, "Well, what about this? What about this? " Instead, I just said no further questions and sat down. And I think that can be effective, but that doesn't happen without preparing ahead of time. And then their doctor, oh boy, their doctor.

That guy, he was a defense expert.

Well, I think he was a southerner, right?

He was, and they were trying to play that up. One of the things that I think their defense expert did was he was a nice guy. Their defense attorney, of course, had to ask how much our doctor was getting paid and ask how much our guy charged per hour. That's something we didn't do, right? With their experts, we let them ... We left that open. We didn't bother with that. I think a lot of lawyers think that's a really good area of cross-examination. I've heard, I've seen focus groups, it doesn't matter what your doctor gets paid or what their doctor gets paid. It can be in the right situation, it can be effective cross-examination, but it's not always. I think you prepare, you prepare, you prepare, and then you make a lot of choices in the moment that ... And often less is more. I know Jack said that my cross-examinations were longer than their directs, and I want to say it was necessary, but I probably could have cut a little bit more.

But I think that's one of the things that is really important is only use the stuff that really hits rather than just because I can or because I can prove that you said something that's wrong, right? Any lawyer can do that. Any lawyer can prove that somebody said something in a way that they shouldn't have said it or that they're confused about this or that, but if there's no motive behind it, if there's no sinister motive behind it, it doesn't land. And so if you can tie it together, if you can point out that there's something that the expert overlooked or that they did in a way that is deceptive or framed the wrong way, and you can tie that to the motive for the way they're testifying, then it's effective.

I think that's such a really good point that I don't know if you guys experienced this, but as I'm coming up trying cases, you're reading everything you can get your hands on, every trial guidebook and every seminar and who's doing this and everything. And a lot of this stuff, if it resonated with you and you applied it, it would work just because of what it was. But there was a lot of arguments or things you can do, impeachment techniques. They're there to your point, Andy, but they're sort of only ... And you don't realize this at first. It's like, oh, I heard you should always impeach the defense IME doctor on how much money they make and how much work they do for the defense. And yeah, maybe that makes some overall point, but it's best when, I think, I don't know if it was Mitnick or somebody said that the best way to do that if you're going to do it is after they've just made some outlandish testimony or they've said something that just seems so off the wall, that's the time to pivot to, if you're going to do it, to money or bias, because then it's showing, "Oh, you're saying things crazy like that because you make all your money and your bread gets buttered by these guys over here and here's how much they're paying you.

" And the same point with what you're saying, Andy, there's so many instances where you could impeach somebody. They said something different now than they did then, but it's sort of like, who cares? As lawyers come over in law school and stuff when you first come out, it's like, "Oh, anytime you get impeachment, you're getting their credibility, but you're not. " And more you practice, the more you realize you really want to limit it to those ones that they're meaningful. It proves a bigger point than just the fact that they said something different now than they did then. I think that's such a good point that a lot of younger lawyers overlook, at least I did for a long time.

Yeah, I know I did all the time because if I had something that I could contradict you on, you bet I was going to raise it. The problem with that is that jurors expect us to be able to do that. That's one thing. You are a lawyer, you know how to cross-examine somebody, right? They expect that. They've seen it on TV, and of course you're going to be able to get this person to look like a liar. But if they're a liar, they're also willing to give people on cross some grace, right? You made a mistake, misremembered. I remember one of the first cops I ever took apart in a criminal case, I called him a liar.This was not in front of a jury, but the judge actually kind of shut me down. He was like, "Mr. Delaney, you keep calling the police officer a liar.

I don't think he's a liar. I think he misremembered." But that was an important lesson. Just because you can show that somebody lied about something and it doesn't matter unless it's tied to something in the case, some kind of motive.

So the verdict was six million, right?

Right.

Mike, because I'm really good at math, three times two million. Afterward, I have to imagine that, I mean, nothing's going to bring ... That's sort of the melancholy side of what we do too, is it doesn't bring them back. It doesn't undo what happened, but did your family feel like it was worth it?

The best part of the trial was after the verdict was read and the jury had left, and I could go back and hug the family. And I mean, the tears in their eyes, you could just see in their eyes and you could just feel in their hearts that they were finally able to start healing and having closure over all of this. It was a beautiful, beautiful moment, my favorite moment in the entire trial.

I agree. I think that was really important because they felt heard. It's just a number, right? It really is just a number, but that number signifies that we heard you.

That's great. Well, I think that's a good ending point, guys. Thanks for sharing the story. I always love hearing how great lawyers approach cases, think about things, what jumps out and connects with them. And you guys shared a lot of that with us today. So appreciate you both Jack De La Piedra, Andy Delaney teaming up from across the country to bring about great justice for a great family. So really enjoyed it, guys. And Jack, if one like myself were to want to hit you up to learn more about your magical questions, how would they track you down?

You can email me. Let me give you my future email, which will be active in May. It'll be jack@elderjustice.com.

Perfect. And Andy, if people want to listen to your BOA constrictor cross-examination ways that are longer than the direct exams and how you do that so brilliantly, how can people get ahold of you, Andy?

Well, I'm pretty easy to find, butrew@mdrvt.com is my work email.

Excellent. Well, guys, great job. Thanks for doing this and hope to meet you guys in person one day.

Yeah, thanks for having us. It was fun.

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