2 Trial Lawyer • Winter 2023 By Blair Townsend OTLA Guardian Whether speaking to juries, experts or our clients, the language we use matters. Often, the words we use are automatic and unconscious, yet they wield so much power and can re-frame the perspective and identity of a case. For instance, we say car crash, not accident. Pain and suffering (and hopefully something better than that), not non-economic damages. For those who subscribe to the Reptile theory, almost every word in the English language has a “code” that, good or bad, carries meaning for jurors. Crucially, how we characterize negligence or malpractice cases to our potential or current clients makes a big difference for them in the framing of their loss. For instance, many who have lost a loved one have a hard time accepting that their partner or family member didn’t just die. Rather, whether at a nursing home or The power of language hospital, they were killed by the negligence of someone else. “To kill” is certainly off-putting and ominous. I have never had a malpractice case where anyone meant to kill our decedent. However, a person in charge made decisions that led to a loved one's death. In my personal experience, the framing gives credibility and urgency to my clients and, in some ways, gives them some relief that when they (often hesitantly) come to a lawyer’s office, they are there for the right reasons. From the heart My perspective is partly informed from my family’s own experience with the loss of a loved one. In October, 2009, a close family friend went into the hospital for a fairly straightforward surgical procedure. When I say “close,” I'm talking about someone I had known all my life. During the procedure, an anastomotic disruption occurred, meaning a perforation of the colon, creating a leak of waste into the body cavity. This alone would not necessarily constitute malpractice — this is a feared and serious complication from the procedure but one that would be included on a standard informed consent form and, if monitored and repaired with rapid surgical treatment, would not prove fatal. That said, without surgery, a patient is subject to the development of septic shock because anastomoses are not self-healing. Wait. Time Out. Shifted back into lawyer mode there. As a nonlawyer at the time, I had no idea what was going on, only that our friend’s temperature was rising, many days had passed since his surgery, he was being transferred into the Intensive Care Unit and was going to have another surgery. My family began speaking in hushed tones. Some conversations were moved to a different room. I can’t remember what I was doing. Honestly, in my youthful naivete and boundless optimism, I assumed everything would be fine. I figured the doctors would fix whatever was going on, they just had to find out what that was. Six days after the initial surgery, our beloved friend developed respiratory distress and had to be intubated. When surgery finally took place, almost two liters of feculent material was found in his abdomen. He was in critical condition and suffered from multiple organ system failure secondary to the perfora- President’s Message Blair Townsend
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