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Act on Your Instincts

Trying a case with the senior partner? Ignore his advice and suggestions.


In the Spring of 2016 I tried what I knew would be my last malpractice defense jury trial. The case involved a nursing home death in Southwest Virginia. Our firm had the doctor and another one represented the facility.

A young lawyer from our Northern Virginia office (we were much bigger then), Kristina Fattoum, tried the case with me. To give her experience, I split the case with her 50-50. I didn't know her very well and I had never been to court with her before, so that was kind of a leap of faith on my part. However, I was used to working with younger lawyers. It was (usually) a fun part of my job.

The trial was messy. The plaintiff's lawyer was difficult and needlessly complicated the process. I didn't like the approach of the lead counsel for our co-defendant. I couldn't say he was doing anything wrong, but he also complicated the case unduly - at least to my thinking. The judge was new. Getting rulings was slow and painful.

On a break early in the trial, Kristina suggested we raise a certain objection. I told her that I didn't think we should. She acknowledged my concern. As soon as court resumed, she stood up and made the objection.

The judge ruled favorably.

Later in the trial, she again suggested some particular tactic. Again, I did not support the approach. Again, she did it anyway.

This pattern repeated itself several more times during the trial.

Kristina's calls turned out to be the right ones. The only one that was not didn't matter.

That lawyer earned my respect hugely, big time. Not only were her trial instincts excellent, but she had the innate courage to risk the displeasure of her boss. I admired both traits - and I am pretty sure I would have done so even if things had not turned out well.

Driving back from that trial - which we won, by the way - I knew that Kristina was a real trial attorney. She clearly had what it took to be good at this business.

Shortly after this trial, Kristina left the firm along with Byron J. Mitchell. I was sorry to see them go. I love working with good trial lawyers. They have gone on to do well in their defense practice, which does not surprise me a bit.

I am now exclusively a plaintiffs' medical malpractice lawyer. When I tried that case with Kristina, I also feared it might be my last jury trial of any sort. Fortunately, that has not turned out to be the case. I have since tried several plaintiff's cases and done well in all except one. I even got the biggest verdicts in Virginia in 2020 and 2021.

Funny how things turn out.

My lesson: Being a good trial lawyer requires guts. You have to be able to act on your instincts - and do so with conviction. You might have to step on some toes - even your boss's toes.

If you can't do that, you're probably be in the wrong business.

By the way, trying that case was fun, a very happy memory.


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