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What I Wish They Would Have Told Me

Gerald Joseph Todaro


  • Jerry, a seasoned trial lawyer, reflects on his career, sharing insights into the challenges and evolution of his practice.
  • He discusses the transition from prosecution to personal injury law, the business aspects of legal practice, and the stresses of running a solo practice.
  • He delves into the complexities of medical malpractice cases, emphasizing how storytelling more than facts can persuade a jury.
  • Jerry also touches on challenges in dealing with both plaintiffs and defendants, thoughts on witness preparation, the importance of credibility, and concerns about the selection of judges with limited trial experience.
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In law school, I was taught that a trial is the search for the truth. Within 15 minutes of the start of my first personal injury trial, my stomach shrank to the size of an egg. The TomTom pounding in my chest wrecked my concentration, and the butterflies I’d get before the start of a high school football game returned unexpectedly and with a vengeance.

The black robed judge was impatient and unhelpful, and the chained Dobermans masquerading as big firm defense lawyers were poised to rip my face off. Despite all that I had heard and read about justice, this trial was about winning at all costs. The fear of failure I had overcome in my days as a competitive athlete returned and sapped my courage. I couldn’t control the quaver in my voice. Later I would come to understand that trial lawyers are like professional athletes. Gamesmanship rules. They must perform fearlessly at a high level, in a hostile environment with emotions kept in check and game face on. And I would learn, all too well, that justice goes to the winner.

My career as a trial lawyer began in the prosecutor’s office trying felonies of all stripes. These were carefree days. Try cases during the day, play in the outfield on the softball team in the evening, drink pitchers of beer at our sponsor’s watering hole, and later hit the social circuit. I won most of my trials, as most prosecutors do. Yup, I was full of myself, a hot shot trial lawyer. Then reality set in.

A highly respected personal injury firm hired me and introduced me to the business side of the practice of law. Being a good trial lawyer wasn’t enough. The cost of doing business including litigation expenses, paying the rent, and meeting payroll brought money and marketing to the fore. The law firm competed with other firms for client referrals. No clients, no money. No money and OFFICES FOR RENT signs would soon follow. The reality, I learned quickly, was a lawyer without a book of business would toil in a law firm as an associate, be paid a reasonable salary as a worker bee but never share in the profit he or she helped generate for the firm.

Once I established a reputation as a competent plaintiff’s medical malpractice lawyer, I opened my own shop—a one-man operation. Moss grew over my doorstep until I decided to up my referral fees to 50% instead of the traditional 33.3%, The stress of worry over the next dollar, the next client, and a must-win mindset felt like walking the high wire without a net.

In the 70s, medical experts for hire became a cottage industry, fueling the proliferation of medical malpractice cases. Medical experts are an indispensable element of medical malpractice claims, but they are expensive. Some charge $12,000 a day plus travel expenses for a court appearance, and experts who have sat for twenty-five to fifty or more depositions are a nightmare to cross examine. Grizzled veteran experts in the courtroom can cherry pick a few facts to form an opinion while ignoring compelling facts that argue against their conclusion. We call it telling the truth attractively or at least selectively. Cross examination of well-traveled experts demands good cross examination skills and can become contentious.

I’ve butted heads with a few who won’t agree that Monday comes after Sunday. They see trap questions coming from a long way off. In my later years defending doctors, my cross examinations of hired guns is something akin to a mosquito trying to feed off a block of granite. Telling the truth attractively or selectively has become an art form.

In my hotshot days as a young prosecutor, I thought I was magnificent in final argument, easily persuading juries to convict the defendant. Once I entered the arena of high stakes civil litigation, I realized I had been shooting fish in a barrel in my prosecutor days. It wasn’t always my highly refined oral skills that convicted the accused-- juries assumed the defendant did something wrong or the police would not have arrested him (something that good judges often tell juries doesn’t amount to guilt). In many of my prosecutions, the burden truly fell on the defendant (something else fair judges tell juries isn’t true).

That wasn’t so when I represented injured plaintiffs, holding my hand out asking juries to award my client money for pain and suffering. Experienced trial lawyers understand that juries can sometimes rely on their gut over facts, logic, or science. In recent years, jury consultants emphasize story telling as the most effective tool of jury persuasion. Forget plain facts and statistics, they say, tell a story that creates sympathy.

Yet there are some clients who can’t be helped. These unworthy plaintiffs include: those patients who doctors can’t save from themselves because they don’t follow advice; the hard drinking, overweight, 2 pack a day smoker; non-compliant diabetics who fail to monitor their sugar levels, and stroke patients who neglect to take their daily blood pressure medicine. On the other side of the table, the arrogant doctor who always knows everything, or the uncaring physician with no bed side manner, or the pill mill assembly line doctors often make settlement the best option.

Facts are important but it comes down to jurors’ perception of the credibility of the person delivering the information. After years of disappointment, I now include this admonition in witness preparation: “it’s not what you say, it’s how you say it.” One of the realities of life that transcends witness preparation is that woodshedding can improve performance, but it doesn’t erase inherent personality defects. The stress of the witness stand and effective cross examination often exposes the flaws in witnesses who have been coached beyond their comfort level. Witnesses who have been told what to say, whether it is true or not, often don’t produce under pressure.

Public criticism of judges is a tricky conversation for lawyers. I never thought I would do such a thing, or that I should. Trial lawyers privately (and some not so privately) complain about biased, incompetent, or lazy judges, but calling out a judge for any misfeasance-- for example ignorance of the rules of evidence or refusing to follow the rules of procedure—often just ends up labelling the malcontent a poor loser, a crackpot, and suicidal considering the possibility of future trials with the offending judge. Friends and political allies of the judge will accuse the bellyaching lawyer of sour grapes and unprofessional conduct, disrespecting the role and function of our independent judiciary and beholden to no one.

In an article published in Litigation, an ABA publication, Robert E. Shapiro, an associate editor and seasoned litigator, addressed the issue of partisan judges. “One thing we don’t want from a judge is bias or prejudice, unalterable predisposition or predetermined views, conscious or otherwise.” Bias and prejudice may be inevitable, he observes. But in recent years another development in the selection of trial judges haunts the trial bar. Ohio allows lawyers to run for judicial office 6 years after admission to the Ohio Bar. Lawyers with little to no trial experience are unpredictable in their rulings. It’s one thing to know the rules but it’s another to apply the rules fairly—a difficult task when the lawyer has no experience sorting through facts and doesn’t appreciate how his or her rulings tilt the playing field.

I like the quote of Oliver Wendell Holmes from The Common Law. “The life of the law has not been logic: it has been experience.” It seems that successful trial lawyers seldom run for or seek appointment to judicial office, except maybe at the federal level. The problem here is this: the position of a trial judge is not an entry level job and there is no substitute for experience with the issues judges are called on to decide.

In the forty years I have been practicing, I’ve been surprised by the various turns of events in my career. My years in the prosecutor’s office were the most exciting and enjoyable. On the social circuit I was met with praise and admiration. When I became a personal injury lawyer, I was stressed by the business of the practice of law -- enduring many a sleepless night. I learned that I was defined by the clients I represented, much like criminal defense lawyers publicly criticized for representing those accused of repulsive inhumane acts. Sometimes at social settings, I felt like the skunk at the lawn party. I wasn’t willing to market myself on TV, billboards, or full-page ads on the back of phonebooks so by the middle of my career my phone went dead.

Fortunately, a malpractice defense firm made me a partner, and suddenly I became a good guy, doing “the Lord’s work” defending doctors from blood--sucking plaintiff’s lawyers. The practice of medicine is one of the most mindboggling of human endeavors, but the general public doesn’t see it that way. Reluctantly, I’ve accepted one major difference between defending doctors and representing plaintiffs. A plaintiff’s verdict lifted my heels off the courtroom floor. Defense verdicts on behalf of doctors who must make quick decisions based on incomplete information and imperfect tests are nothing more than sheer relief. By the following Monday last week’s triumph is in the rearview mirror, nearly forgotten.

On the day of graduation from law school, I could not have envisioned the trial lawyer I would become or what that would mean, and how I would view myself.