Rival in the Courtroom: Discussing Defense with Paul Weathington
By: Bell Law Firm
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Rival in the Courtroom: Discussing Defense with Paul Weathington
Welcome back to “Face the Jury,” a podcast dedicated to confronting the issues involving medical malpractice in America– what it is, how to spot it and how to protect you and your family from medical negligence.
In this inaugural episode of Season 3, we have a guest unlike any other. We invited one of the most successful defense attorneys in Georgia, Paul Weathington, on the show to discuss medical malpractice litigation from the opposing side.
Lloyd: Today, we have a special guest that may surprise many listeners. Our guest is widely considered to be the most successful medical malpractice defense lawyer in Georgia and had a winning streak of 50 defense verdicts in a row at one point in his career.
I’ve tried many cases against this defense lawyer, sometimes coming out on top or coming in second. He is the ultimate professional, a skilled courtroom opponent and a highly ethical lawyer who always fights hard for his clients. I am pleased to welcome you to the show, Paul Weathington.
Weathington: Lloyd, thanks for having me. How about that introduction. I appreciate it coming from you – the most worthy adversary in these cases.
Lloyd: I’m happy to have you here on the show. This podcast focuses primarily on medical malpractice issues from the patient’s point of view, so you are my first guest to bring the doctor’s and nurse’s point of view. Tell us how you came to focus your professional life on defending medical malpractice cases.
Weathington: I’d practiced big law here in Atlanta at Troutman Sanders and then with David Flint back home in Carrollton. The firm had a niche practice in medical malpractice defense in the West Georgia area. David Tisinger developed many great clients, including the Houston Clinic, Tanner Medical Center, and other groups in that region. I was lucky enough that he asked me to help him with cases.
I tried my first case by myself with Lance Lourie as a co-defense lawyer. Then I was on a murder case in Carrollton while Hunter Allen was trying a malpractice case the same week. I was in Superior Court, and he was in state court, and I gave him the lowdown on Carroll County juries. The next thing you know, he talked me into coming back to Atlanta. I was very honored to have David Tisinger and Hunter Allen as mentors.
The law in medical malpractice cases is sometimes not as challenging as the medicine in these complex medical issues, and every case is different. I was never cut out to be a guy that reviewed contracts, and neither were you. Each case presents its nuances and challenges.
Lloyd: Let me ask, is it true that you had a winning streak of 50 defense verdicts in a row?
Weathington: I’m not sure about that urban legend. There might have been one or two where we gave $25,000 or something.
Llyod: Well, there’s no arguing about this; you’ve had a tremendous amount of success defending these cases over the years. Tell us what you think makes you successful at trial.
Weathington: We try to command the medical issues. We use nurses and have a JD MD. We try to get the best experts to be on top of the medicine. I think successful young lawyers and plaintiff lawyers will agree you have to win the jury.
I’ve always tried not to do anything to hurt my case with the jury. It’s very important to have sound footing with the jury and try to connect with jurors. My goal is not to do anything that would alienate any strong jury members who might sway the jury against me. I try to have an organized presentation and dumb down the medicine for everybody.
Connecting to the jury from start to finish adds levity here and there. I’ve always felt like we’re behind winning the jury when judges let plaintiffs have unfettered access to a jury without the defense speaking for a couple of hours. I’ll object because I’d rather be able to talk to the jury a little bit, too and not let you have all the mic time.
Lloyd: Now, let’s not forget I have the burden of proof. I should arguably have that unfettered access.
Weathington: There’s no big mystery to it. You don’t want to waste the jury’s time. You never want to lose a case because the jury didn’t like you as the lawyer, because your clients can sometimes do a good job with that on their own.
Lloyd: When I have this unfettered access with the jury, you’re not just sitting there passively. You’re memorizing all their names. You have this capacity to stand up in front of the jury for the first time and suddenly call them by name. Of course, everybody’s favorite word is their name.
Weathington: I was the rush chairman of my fraternity back in the day, so I had to remember names. If I get enough time, I can memorize 60 names. It’s nice when you can stand up and call people by name, but you have to be careful to not mess up. Then that juror is going to hate you forever. But it just shows you’re paying attention.
Lloyd: Let me ask you some harder questions. I talked to several my colleagues who questioned why I had you on my podcast. They said it’s a plaintiff’s podcast, and I said, well, not really; it’s a podcast that focuses on medical malpractice issues. I couldn’t think of a better guest than to have you on here to talk about your experiences.
But everybody had proposed questions. So, let me ask you, what are the three biggest mistakes you consistently see plaintiff lawyers make in a trial?
Weathington: Lawyers can’t resist the urge to hear themselves talk. I think over-doing direct examination and keeping a witness on direct for two or three hours and going over the same things. There’s also holding back the cards. Something on both sides that’s not produced in discovery and suddenly comes up can hurt either side.
I like the style you’ve had in the last few trials where you start the examination of an expert with three points you’re going to make, so that’s signposted for the jury. You have to know how to handle the sympathies and empathies of witnesses. You could go too hard on a witness; I’ve done that myself. Some jurors are going to sympathize with these doctors who’ve been sued. You must have balance.
Lloyd: Well, one of the points you made is don’t try and ambush on either side. I know, for example, you had a case where a plaintiff lawyer attempted to conceal a critical witness. You had disclosed the witness in your pretrial order that said you could call any medical person in the medical chart, which could have been 100 health care providers. They never identified this person by name, and then they got to trial and wanted to call him by name.
Weathington: I remember that case like it was yesterday. It was a Perry Mason moment. They called out the next witness, and we heard the name. The name was not on the pretrial order or interrogatory answers, and in fact, we had emailed asking about witnesses, and nobody ever divulged this person. We would have lost that case, and this was a witness who was going to say my doctor was lying.
This was a critical witness in a paralysis case and could have been a $30 million verdict. Instead, the court excluded the witnesses. The Supreme Court upholds the exclusion of the witness and excoriates the conduct of counsel who admitted they were trying to win by ambush. Their tactic backfired, and the plaintiff lost out because of their strategy.
Lloyd: I don’t know where that thinking got embedded in trial. It almost always backfires. Our approach at my law firm is to disclose the case from the very beginning, fully. We file detailed complaints and embed the medical records in the complaints. We make it clear to the defense. We don’t do that to be nice, but we do it because it’s a better way to present your case and do the work on the front end. It gives fair notice to the defense exactly where we’re coming from, so hopefully, we can distill the case down to the issues that matter quickly.
Weathington: Other defense lawyers were saying, “Can you believe this complaint? It’s 800 paragraphs, and it has all the medical records.” Well, you get to bill for answering all that. We should never complain when we get a case to work. I will add, Lloyd, when you asked me the three things. Another thing is the proper use of medical records in context is important, so the jury doesn’t lose trust in the lawyer.
Lloyd: That’s an important point: the credibility of counsel. It doesn’t just start in trial; it starts from the very beginning of a case. You are presenting a case that’s been adequately vetted by experts and researched with attorneys who have put in the heavy lifting to lay out the claims.
I’m pro-doctor. My father and uncle were both doctors. I’m pro-medical profession, but I’m very unforgiving if I feel like people don’t do right by their patients. Credibility is so important on both sides. If the defense tried to hide anything, I would point it out, and you’ve done the same in court.
Now, share the three biggest mistakes you consistently see other defense lawyers always make in trial.
Weathington: It goes again with lawyers loving to hear themselves talk. When there’s an expert primarily against my defendant, and I’ve got that expert where I want him on cross-examination, and then a co-defendant starts asking a bunch of questions that muddle my point. I think, why the hell did you just screw up my expert on issues that don’t matter to the jury?
Another is changing your theory at trial or not coming clean with document production or medical records. At my firm, we overproduce, not underproduce, so if there’s a document that needs to be produced in discovery, we will produce it.
Lloyd: That’s been my experience dealing with your firm, Paul. You will turn over the things you’re supposed to, such as text messages between medical providers or anything else relevant to the patient’s care.
I did defense work a lifetime ago when I was in the army, and I remember Gary Blasingame telling me your job is to be the advocate and do the best job you can.
That brings me to my next question. Are there times when you get a new client, review the medical records, and think they screwed up and their negligence caused harm? How do you deal with that?
Weathington: It happens often enough. We get vetted cases from your side where you’ve had an expert look at it, and your expert is correct. So, when that happens, most insurance carriers don’t want to waste money on defense costs. I believe you’re going to see some carriers doing a better job of assessing cases up front, evaluating whether we can win this, whether we have a chance, is there a causation defense, or is there damage mitigation? Overall, it’s about finding an early solution.
We’re encouraged to tell upper management of these carriers if we have a terrible case that needs settling. It only makes sense to look at the possibility of early resolution.
Lloyd: What advice would you give plaintiff lawyers to get the early attention of decision-makers in clear liability and causation cases?
Weathington: A well-written pre-suit and demand letter that lays out the facts and tells the plaintiff who your expert is and why they are essential is a slam dunk. You hit the nail on the head. Carriers tell defense lawyers to immediately notify them when they receive time-limited demand letters and trial dates.
Lloyd: I’ve got a hypothetical question for you. What would you say if one of your kids approached you and said, “Dad, I’m thinking about becoming a plaintiff lawyer and representing patients instead of doctors?”
Weathington: I would say, son or daughter, please take my call when I need a loan from you and all the money you will make. I want my kids to find rewarding work. I’ve encouraged them to look at the plaintiff’s PI work. I’m going to be proud of whatever they do.
Lloyd: I agree. The priority is they’re happy, and the second is they get off the payroll to support themselves.
You’ve been doing this work for 30 years. Tell us about the most significant changes you’ve seen in the healthcare industry, specifically in the medical malpractice defense industry.
Weathington: The biggest change in a case, and the worst thing we can hear as the defense, is the audit trail.
Lloyd: I thought you would say plaintiff’s verdict.
Weathington: That’s bad too. But the audit trail is the footprint of the electronic medical record. The electronic medical record shows who accessed a chat and for how long. There’s an audit trail for the PAC or radiology system.
The electronic medical record, which leads to the audit trail issues for me, has been the biggest change in medical malpractice. It makes it easier to prove that your doctor or nurse saw the patient. On the other hand, the detail of the encounter is sparser than what we used to have. The notes are often more helpful to the plaintiff.
Lloyd: The EMR is debatable on who it helps the most, the plaintiff or defense, depending on the circumstances.
Weathington: There is great access to expert witnesses on the plaintiff’s side. When I started doing this in the 90s, it was the usual cast of characters appearing in court. On the plaintiff side, you couldn’t get people who would review cases because they didn’t want to testify against colleagues, but that’s changed. I find that the quality of the plaintiff experts that we face at trial is better than it used to be.
Lloyd: The experts we work with see a connection between the plaintiff’s case and patient care. Top-notch experts are intolerant of bad medicine. I agree that better experts on both sides can drive the case towards a fair resolution.
What trial sticks in your mind as one of your happiest moments?
Weathington: You know we love to win, and I tell my doctors before the jury comes out, let’s handle this professionally. I can’t single one out. One of the cases I had with you was one of the hardest losses.
In one of the first cases they trusted me with in West Georgia, I was on the phone saying the jury had just retired when they told me the jury was already back with a verdict in about five minutes.
Lloyd: The biggest nightmare on the plaintiff’s side is a quick verdict from the jury. After a two-week medical malpractice trial, it is never good if you hear the jury has a verdict within 30 or 45 minutes.
We had a case together on a complex regional pain syndrome diagnosis. It is a miserable pain condition that some people can develop. It was a strange case, and it was hard to understand and explain how the patient developed this extreme pain condition. That was our first trial together.
The thing that stood out about that case working with you was that everything was fluid. I mean, you were able to adapt. We were using a lot of technology and moving the ball quickly. You blocked us at every step along the way, and I think it could have been a different result with a different jury and judge.
Weathington: I may have lost that case in voir dire. You picked a great jury and had them crying at the closing argument.
Lloyd: When the trial was over, your whole team was absolutely professional. You never make it easy, but I appreciate working with you.
Stay tuned for Season 3, Episode 2 of Face the Jury, where we speak with the GOAT of medical malpractice litigation and advocacy – Pat Malone.