Jonathan Leach
Appearances
Nobody Should Believe Me
S03 Ep07 RERUN: Trial of the Century
And that initial shelter hearing, which is in October of 2016, what I show here is that the guardian ad litem actually says, you know, we're in a tough spot here. I think he says all of us agree that she needs to be transferred to the appropriate place. We just don't know where that is. We're having a hard time figuring out where that could be. So, yeah, what comes through is this kind of –
Nobody Should Believe Me
S03 Ep07 RERUN: Trial of the Century
desperation on all parties. Let's figure out what the best plan is and let's do that. Now, with respect to the specific plan to transport her to Nemours, my understanding is, I think I saw testimony on this, that there was, at least from the hospital's viewpoint, a meeting of the minds, right? We all agreed this is what should happen.
Nobody Should Believe Me
S03 Ep07 RERUN: Trial of the Century
And then the very next day, the hospital discovers that no, the Kowalskis aren't part of that plan after all. We thought we had a plan yesterday and then today it's no, we're not taking her there.
Nobody Should Believe Me
S03 Ep07 RERUN: Trial of the Century
I think if I'm the plaintiff's attorney, I'm feeling maybe more confident about the negligence claim. That is the negligent infliction of emotional distress claim.
Nobody Should Believe Me
S03 Ep07 RERUN: Trial of the Century
than maybe the malpractice claim, just because I think when the jury sits down with the verdict form, they will not have a difficult path to navigate there from things that the hospital would have, could have, should have done in order to prevent all this. I think what we're seeing so far, at least, is a little bit of fuzziness about what exactly is the protocol.
Nobody Should Believe Me
S03 Ep07 RERUN: Trial of the Century
What is the standard operating procedure? You and I can explain maybe why the 85 days elapsed or the 87 days elapsed, but it proves to me that the hospital was assertively, aggressively trying to find a plan B for this little girl. I'm thinking that NIED claim looks pretty promising maybe for the plaintiff.
Nobody Should Believe Me
S03 Ep07 RERUN: Trial of the Century
because of the questions they're asking. This seems to me to be a very engaged, thoughtful, serious jury. For example, can we see the shelter order? Can we see a copy of the shelter order? That is, this is a jury that wants to know what were the rules of the game? What's the governing standard? What's the protocol here? So my prediction is that with this particular jury,
Nobody Should Believe Me
S03 Ep07 RERUN: Trial of the Century
They're going to do their best to give both sides a fair shake and really work diligently to arrive at the right decision.
Nobody Should Believe Me
S03 Ep07 RERUN: Trial of the Century
There is always a danger that they get overwhelmed. I think the lesson really is a lesson to the trial team, whether it's plaintiff or attorney. I think everybody on both trial teams has to recognize, look, this is a lot of work we're asking these jurors to do. How can we make this process, the next whatever it is, six weeks, make it as easy as possible for them?
Nobody Should Believe Me
S03 Ep07 RERUN: Trial of the Century
Dr. Chopra, interestingly, has demonstrated that he understands that very well. He faces the jury. He addresses them directly. He makes jokes. He's sort of lighthearted about the number of medical records he's looked through. He's connected very well with them.
Nobody Should Believe Me
S03 Ep07 RERUN: Trial of the Century
I think what we know is that there are MDs out there who are of that camp and who are I won't say we'll issue a made-to-order opinion, but are very amenable to moms, typically moms, who make this sort of complaint of some exotic illness.
Nobody Should Believe Me
S03 Ep07 RERUN: Trial of the Century
I think in this case, the specific wheel that was turning very slowly was the search for an independent expert. Where is the independent expert who can come in here and weigh in on this case and evaluate for the benefit of the court what's really going on with this child? I think in the shelter hearing, what comes through is almost the... the desperation of the judge.
Nobody Should Believe Me
S03 Ep07 RERUN: Trial of the Century
The judge is practically begging for somebody to come rescue them, someone with independent expertise to come in and evaluate the case. And no one can find one. They're hard to find. These people are very specialized. They're few and far between. They are rare experts. And in this case, in October late 2016, the court just cannot find one.
Nobody Should Believe Me
S03 Ep07 RERUN: Trial of the Century
During the shelter here, the very initial shelter here, the two possibilities that were raised were someone with expertise in pediatric psychiatry, someone with expertise in pediatric neurology. So those would be just two examples. Now, as soon as someone with those qualifications understands what they're being asked to do, many of them run the other way. That is, oh, this is a potential lawsuit.
Nobody Should Believe Me
S03 Ep07 RERUN: Trial of the Century
This is a disputed matter. This has all the indications of going into the legal system. I'm going to have to review thousands of pages of medical records. I want no part of this. Now, I don't know to what extent that attributes to the 85 or 87-day stay in the hospital, but I think, based on what I've read, it is a very significant reason for that long time period.
Nobody Should Believe Me
S03 Ep07 RERUN: Trial of the Century
We start all over. I mean, both sides have to retool and ramp up. I've been involved in those. And essentially what happens is this, whatever, how many weeks we've been doing this becomes a kind of very elaborate mock trial for the real one that comes later. It's hard to imagine, but it all would cure up at some future day.
Nobody Should Believe Me
S03 Ep07 RERUN: Trial of the Century
The visuals that I have seen, I'm not sure are that helpful to the plaintiff. That is, my sort of windshield take on a lot of these photos, video, even seeing this young lady in the courtroom, I think as a juror, I'm a little puzzled by how serious was this? How ill was she?
Nobody Should Believe Me
S03 Ep07 RERUN: Trial of the Century
And I'm thinking, for example, maybe of photos or videos that took place in Dr. Kirkpatrick's office where she seems to be almost bubbly and engaging with him in a very light and seemingly happy way at a time when I think we're told that she is in terrible pain.
Nobody Should Believe Me
S03 Ep07 RERUN: Trial of the Century
So the fact that the jury has been exposed to things like that makes me maybe a little, if I'm the plaintiff, maybe a little concerned about what the takeaway is from all that.
Nobody Should Believe Me
S03 Ep07 RERUN: Trial of the Century
Her treatment at Tampa General, which is basically the month of July and August in 2015, as I understand it, she is prescribed drugs. physical therapy and psychological counseling coming out of Tampa General.
Nobody Should Believe Me
S03 Ep07 RERUN: Trial of the Century
As far as I can tell, the really next significant event after that visit to Tampa General, that month there of therapy is that Beata takes her to Dr. Kirkpatrick for what begins this ketamine infusion treatment. I mean, it just, in terms of a visual, that just seems to be a significant turn that would be important for the jury to know about.
Nobody Should Believe Me
S03 Ep07 RERUN: Trial of the Century
In essence, it says that the specialized knowledge that the expert has is
Nobody Should Believe Me
S03 Ep07 RERUN: Trial of the Century
is admissible if it is based on reliable principles and methods that are generally accepted in the community of experts, typically the scientific community, and that it's based upon facts and data, and that in the judge's opinion, the expert has reasonably, rationally applied their principles and methods to the facts and the data.
Nobody Should Believe Me
S03 Ep07 RERUN: Trial of the Century
And what the plaintiffs in this case are asserting is that because these terms, Munchausen's and falsification, medical child abuse, are so fuzzy in their opinion, and the science, they characterize it in their motion as junk science, that Judge Carroll should not allow any of this testimony in.
Nobody Should Believe Me
S03 Ep07 RERUN: Trial of the Century
My name is Jonathan Leach. I am a sole proprietor trial consultant, sometimes known as a jury consultant. I am also a Texas attorney, and I have been in the trial consulting business for about 25 years, going back to the late 1990s.
Nobody Should Believe Me
S03 Ep07 RERUN: Trial of the Century
So that encompasses jury research, possibly mock trials or focus groups.
Nobody Should Believe Me
S03 Ep07 RERUN: Trial of the Century
to help understand how the case plays to folks in a particular jurisdiction, whatever part of the country the court actually is seated in, and then working with witnesses to help them prepare for trial, help them figure out how to communicate effectively with the jury, establish rapport, get their message across, speak at a jury level.
Nobody Should Believe Me
S03 Ep07 RERUN: Trial of the Century
It encompasses things like visuals, demonstrative aids, graphics to communicate the case to the jury, that way. So a lot of different tools come into play, but the gist is to help a jury understand as efficiently as possible what happened.
Nobody Should Believe Me
S03 Ep07 RERUN: Trial of the Century
I think what we see in the courtroom is the tip of the iceberg in terms of the amount of effort that the two trial teams are having to put in. It is typical to leave the courtroom at 5, 5.30 to go immediately to the trial preparation room, sometimes called the war room. And in some sense, the workday begins at, say, 6 p.m. and goes into the wee hours.
Nobody Should Believe Me
S03 Ep07 RERUN: Trial of the Century
And you're always responding to curveballs, to sudden developments that took place that day in the courtroom.
Nobody Should Believe Me
S03 Ep07 RERUN: Trial of the Century
I think really one of the first things I'm concerned about in this case is the length of the trial and the complexity of the issues. Jury selection is a misnomer because when you come into the courtroom as a litigant, what you're really doing is engaging in a process of deselecting jurors that you don't want.
Nobody Should Believe Me
S03 Ep07 RERUN: Trial of the Century
But having said that, you would want to develop a profile of jurors you think will be most amenable to your side of the case. Always keeping an eye out for those who are potentially dangerous to your case. I think if you're working with a defense in this case, what you're looking for is a person who will take to heart the instruction to wait for the entire story.
Nobody Should Believe Me
S03 Ep07 RERUN: Trial of the Century
As we know, plaintiff gets to go first. Plaintiff will do its very best during its case in chief to put over the most aggressively pro-plaintiff version of the story that it can't. And of course, you want jurors at that point still to be willing to hear from the other side, not to be so emotionally inflamed that they can't calm down and listen to the other version of the case.
Nobody Should Believe Me
S03 Ep07 RERUN: Trial of the Century
if you're the defense, again, you're looking for markers of the ability to delay gratification. And I think in this case, that means just as examples, maybe folks with advanced degrees, people who have pursued an educational path maybe longer than others, people who appear to be in good health, who will give answers on the questionnaires that suggest that they are
Nobody Should Believe Me
S03 Ep07 RERUN: Trial of the Century
capable of listening calmly and patiently to the entire case and sort of navigating through some of these. I saw this medical testimony is very complex. Some of the legal issues, the orders that have come down are hard to navigate.
Nobody Should Believe Me
S03 Ep07 RERUN: Trial of the Century
In a sense, what's happening, one version of this case is that Miata Kowalski is being put on trial. And so as a plaintiff attorney, I'm looking for folks who will identify, I think, with Beata's plight, who will emotionally, psychologically put themselves in her position and view the whole narrative through Beata's eyes.
Nobody Should Believe Me
S03 Ep07 RERUN: Trial of the Century
Perhaps someone who is more prone to think maybe emotionally rather than being coldly rational about things, looking to deselect the folks that I think are favorable to the defense. So the The higher level education folks, the folks who have been established in the same career for a long time, the folks whose life history suggests a lot of stability.
Nobody Should Believe Me
S03 Ep07 RERUN: Trial of the Century
Those are the people that I think I want to strike as the plaintiff attorney because I'm looking for the opposite.