Can a closing argument make or break a nursing home case? The final words in court are crucial for justice. In this week’s episode, nursing home abuse attorney Rob Schenk welcomes guest Xavier Carter to talk about effective strategies for closing arguments in nursing home cases.
Schenk: Considerations for closing argument and nursing home cases. Stick around.
Hey out there. Welcome back to the nursing home abuse podcast. My name is Rob. I will be your host for this particular episode. We’re going to be talking about closing arguments in nursing home cases. How do we tell the story? What is important about closing arguments? What can we achieve? We’re not doing that alone. We have the fantastic trial attorney, Xavier. Carter to help us along with that.
And as I mentioned, folks, we’re going to have an excellent conversation about closing arguments and nursing home cases. But as I mentioned, We’re doing this with the help of an expert, Xavier Carter for 11 years, Xavier Carter has excelled as an attorney boasting a diverse background and complex litigation.
His tenure as a United States attorney for the Northern district of Alabama saw him confronting large scale frauds and violent crimes. Prior, 500 companies and high stakes litigation across various Industries. Today, Xavier leverages his extensive litigation expertise to advocate for individuals and families affected by negligence, specializing in medical malpractice, nursing home abuse, and serious accidents.
His unique skillset and perspective make him a formidable advocate against powerful adversaries, both in and out of the courtroom. And we are very fortunate to have him here with us today. Xavier, welcome to the show.
Carter:
Thanks. Thanks Rob. I appreciate it, man. I appreciate you. having me and giving me the opportunity. I’m really excited about this.
Schenk:
Great. And I’m only laughing because now I, I told Xavier that I’ve only done this once, but actually I think this is the second time that I’ve failed to hit record. But luckily we didn’t record the entire episode. We just recorded ourselves saying hello to each other. Okay.
So with that out of the way so I got to see Xavier do a closing argument in 2022 and the Life Care Center versus Dubois case. And it was amazing from the standpoint of how you were able to connect with the jury, the visuals that you used, everything. And I just remember my mind being like, I got to get this transcript.
I got to copy what this guy’s doing. And that’s why I fast forward a couple of years later. I’m so happy to talk to you about closings and nursing home cases from just that experience. So the first kind of question I want to throw out at you. Is where you rate in importance closing in a nursing home case as opposed to any other category like void or openings or cross examination?
Carter:
Absolutely. That’s a great question, Rob. That DuPose case was, is one that was near and dear to my heart. I don’t know if you know this, but that was actually the first closing argument I ever did in a nursing home trial after I came from the U.S. attorney’s office. Get out of here. So that was, it was my first time. Yeah, that was my first one. And so I think we’re only up from here and we’ve had a couple other opportunities since then. And it was a big one, obviously we’re discussing that the total 15. 3 million verdict. So that was awesome.
It felt great. As to answer your question specifically as to the relative importance. It’s something that I’ve thought quite a bit about and read quite a bit about and try to process in my own mind, quite a bit about with regard to the relative importance of the closing argument versus the other components of trial and specifically opening and board.
I love love doing closing argument. But with respect to the relative importance, I think that the close that the opening. The board diary in the opening, which I tend to link together. I think those need to be two sides of the same coin. I think those are more important because what we know from psychological research and research into the people’s decision making process people broadly is that people make information, make decisions and they make decisions relatively quickly.
And The information that you give them in the board diary and in the closing, I think it’s more likely to have them to make a decision that’s in your favor or against you early on. So that those things are really important, but closing the purpose of closing to me is for empowering, Because if you haven’t proved your case by that point, you’re up a creek, right?
The purpose of closing is to empower the jury with the information that they need to go back there and give you the result that you need and that your client deserves. And I think it all needs to be part of one story. We can talk all day about the importance of storytelling, but that that for Dyer and then opening needs to match up with that closing.
And it needs to be all one story. But by the time you get to closing, it is really about empowering the jury to do what you what you need them to do.
Schenk:
I see. So if I if I hear you correctly, the, I guess it’s the rule of primacy that Vaudeer and opening your first, the opening salvo is typically where you can potentially get a lot of favor or even win your case that early.
And then when closing comes around, you don’t win it in closing. But you can lose it. So it’s, I guess what, from my understanding is that you just, you got to have the follow through from what you’ve already set up from early on in the trial. That’s exactly right. The follow
Carter:
through.
Schenk:
Yep. So let me ask you this.
What’s your approach? Cause I know you came from the government work first, but what’s your approach to closings in general? Like how, what’s your mindset for doing that?
Carter:
Yeah. My mindset is. We want to tell a story and we want again, we want to be told in that story from the beginning.
But we as lawyers, we forget that these jurors have had a lot of information coming at them, right? And sometimes it comes at them in a disjointed fashion, right? Because sometimes we have to call witnesses on board. We have to call experts out of order. And so we think it’s coming together in a certain way that because we’re so familiar with the case that they may not be coming together quite as cleanly for them.
So I view my role in the closing is to put the story together in a way that makes sense. So put those facts together into a story in a way that makes sense for them and give them my story that I believe is better than the story that the Fed side is going to tell. And it better be a story that matches up what they already know about the case and already believe about the case.
But I’m trying to put together a cohesive closing story so that they can say, yeah, that’s right. That makes sense. It must have happened like that. And let the jury try to let the defense try to try to take shots at that. And I’m always I’m all, I’m almost always going to leave something for, if I have a little bottle of clothes available to me, to leave something for my rebuttal clothes to give a little bit more oomph at the end when no one can respond.
Schenk:
If I remember correctly, and maybe this is wrong, but you tell me, but there’s some camps that it’s, the story is chronological. The story is. The resident was this way, came in a nursing home and now is this way. And there are some that will approach it from the hero’s journey, which might not start chronologically.
It might be the nursing home one once upon a time, a nursing home was doing these bad things and the bad thing happened to my client. And if I remember correctly, I feel like you did your closing more towards the hero’s journey. If I have, but I, can you elaborate on that?
Carter:
You got
Schenk:
Carter:
Yeah. So I, and I think it depends.
It just, it all depends. On the facts and the circumstances of your case. But one thing again, we know from psychological from research is that we want to keep the emphasis on the defendants behavior, right? This is about the defendant, what the defendant did and how, and one thing I learned as a federal prosecutor is, if I’m getting ready to send somebody to prison, the jury wants to know why a lot of times, and I think that’s the same thing here, right?
They want to know the why this thing happened, right? And you got to, Explain to them and particularly in the nursing home case that this isn’t just, this isn’t some old person who got sick and it’s really tragic, but they were going to get hurt. And they were, they were going to pass.
Anyway, there’s nothing anybody can do. This is a result of conscious decisions that were made by this nursing home or this nursing home chain to put profits over people to not invest in staffing. It’s not give the staff the resources that they need. And that’s a story. That’s a story that that people can grasp onto and understand.
Yeah. Okay. This is why this happened. And so when you’re starting with, like you said, with the hero’s journey you’re starting in a place where you can say, this is the context, this is the context for this thing and why this thing happened. And that’s part of that whole storytelling process that I’m talking about.
Schenk:
That reminds me of I heard Mark Kozlowski from Minnesota, an excellent nursing home attorney up there. He was saying that it’s The people didn’t die on the Titanic because it hit an iceberg. They died because they weren’t on enough lifeboats. And so the why of the deaths, the Titanic is the corporate greed to get there, to get the Titanic there faster and not have enough money to have lifeboats, that kind of thing. So if you can tell your story in that way, as you just described, that’s typically where you can get the withdraw the passion from the jury get them on your side, get them actually motivated to do something.
Carter:
Rob you’re a thousand percent on it.
And I love that you got that from cause has been a mentor for me since I moved to the plaintiff’s side from the US attorney’s office. And I’ve learned a lot from I think that’s exactly right.
Schenk:
Yeah, he’s a good harmonica player too. Okay. So let’s let’s focus in a little bit on this.
So you, what I understand you to say is that, that Rob closing arguments you, that’s where you button things down. You tell the story. If you can tell the story predominantly for the perspective of the nursing home and what they’re doing wrong. And our, on our client, fell victim to that.
How are you, what are something specific in nursing home cases of in your closings or that how would a nursing home case be different in that perspective than just a regular medical malpractice case? Tell me about that.
Carter:
One of the things one of the things that can, particularly in a case like the duos case for example, right?
And in other cases that we’ve done and had success with at trial. The stories of the former employees in a medical malpractice case, more likely than not, you’re not going to have someone that will come someone who was who worked for the defendant who will come in and say, yeah, these were the circumstances.
This is what it was like. This is why I couldn’t do my job properly and inform that broader context. And one of the thing that was great about both cases that allowed the jury to see through the defenses that lock your sense of America put forth was that we were able to bring forth. We were able to bring forth former employees who were able to talk about the circumstances of that facility.
And so that the jury can see through. Okay. Again, this is the why this is the why and 1 thing we’d like to try to do is show that not only is our client, the victim, these are working Americans, these people who put on their pants every day and they’re trying to go and help benefit these live the lives of these elderly people.
They are also. Victims of this system, right? Because they become frustrated. And they resigned and they quit and they go from place to place trying to find someone that would give them resources to do their job because it is a difficult job.
Schenk:
Yeah. Cause I feel like we can argue in closing all of our stats that our experts are saying about how this is the number of staff they have.
This is the expected staff and they should have, and they’re saving all kinds of money. But in reality, If you have, Ms. Johnson go up and she was a CNA during that time period, who can say we had to hide linens because we didn’t have enough of them. I worked 75 hours in four days, these type of things.
I feel like you’re right. That’s the, that’s, those are the impactful arguments that, that kind of, that bring out the emotion in the jurors. And they’re specific to, not specific, but highly specific to to nursing home cases. Let me ask you this. This is something that I’m remembering about how in your closing, you talked about, and this is more towards, would be the damages component.
But you talked about, and I think that you asked one of their experts what they did in their spare time. And, what’s that worth to you and what, how many hours do you spend above all? What did you per hour? And then you flipped that on its head and applied it to your own client on that closing.
Can you talk about what that is and the argument that you made?
Carter:
Yeah. Thanks for remembering that. And I’m trying to remember as much of it as possible. But, here in Georgia, Rob the way we measure wrongful death damages is the value of the life from the perspective of the deceit.
And that’s a powerful, that’s a powerful frame from which to discuss the value of something that’s esoteric, right? How do you get a jury to value the life? How do you get the jury to value the life of an elderly person? And Ms. Dubose was 77. She had dementia yeah, she had lots of health issues, but she still valued life, right?
And what I wanted to show the jury was, and talk to the jury about was, she’s, there are still things that she valued just like the defendant’s experts value, things outside, and they’re all personal life. And we sometimes one thing we like to do is we like to ask how much are you being paid to be here?
And when you would you rather be with your family? At this time, isn’t that more valuable to you so that you can flip it on his hand and say, this is what if he values his time this much, why wouldn’t miss do both value the remaining days of her life?
Schenk:
You say it much better than I do. And I remember like that’s just for me, that stuck out to me as a very powerful point.
Like I remember being like, Damn. That guy’s slick. That’s awesome. That’s a really great way to frame it. And it makes a lot of sense. And I guess slick is not the right word because slick makes it sound as though it’s like you’re getting one over, but you’re not, it’s actually, you’re just, you’re unveiling something that maybe they never realized before, but I thought it was an extremely powerful moment.
Carter:
I appreciate that.
Schenk:
What are some other things that, that about that closing that you recall that kind of stick out to your mind that. Might be helpful for people out there.
Carter:
Off the top of my head, let me think. So one, I mentioned rebuttal and I don’t know what people’s what the laws are in various states about rebuttal.
I know here in Georgia, generally speaking, we get to have a rebuttal case. And one of the things I like to do, and one of the things I think that was effective in that case was I save, I try to save something for rebuttal. So one of the things that we knew for as for an example, one of the things that we knew was that they had been set.
They had been arguing the entire time that this wound of his do both developed was unavoidable, and that she was dying in. And that was going to be their argument, right? She was dying anyway. She was so bad off. She was dying anyway. I went and got every MDS that they had and in the MDS, it shows you have to certify whether this person is likely to die in the next 6 months.
And after they made their argument that she was going to die. Anyway, I showed being every MDS that they had. There was no indication that she, they indicated specifically that she was not likely to die in the next six months. So one of the things I like to do is save a little something and almost set a trap.
I know they’re going somewhere. I’m going to set a trap to rebut that in my rebuttal. And then I’m going to shift to the damages, right? Once I prove that they’re full of it and sorry if that’s, then I’m going to, I’m going to pivot to the damages.
Schenk:
No, that’s I know. It just made me think of this.
So let me ask you this then. How much of that closing had you prepared prior to the trial starting versus you maybe the night of Oh this didn’t come in or this came in. Let me change it up. And how does that typical for you? Are you I want to try to get, I want to try to have an outline And it’d be done knowing that things might change or are you just like you the night before you’re putting it all together?
Carter:
No, I’m not doing it the night before. I can’t work that way. My law partner, Lindsay for life. She can, she’s awesome. She’s awesome attorney. She can wing it. I can’t work like that. That’s, if I have to, but in a case like this, That’s something I won’t set up at least the framework for it, at least the framework for it in advance of trial, right?
Because you don’t really know what’s coming and you generally know what the case is. The way I like to structure a closing, I want to have that thing prepared as much as possible in advance. And then if things didn’t come in, or there are adjustments that need to be made, we could make the adjustments, but at least the framework I got in place.
I’m going to have before trial and be tinkering with it and thinking about it throughout the trial.
Schenk:
Do you guys focus group your closings?
Carter:
No, I’ve not. I’m not focus group a closing. I’ve not done that. It’s something that I want to do more of. I need to, I’ll be honest. I’ll confess to you in my practice.
I want to start spending more time learning focus groups, doing focus group because they’re powerful. You learn so much in those focus groups and there’s something I need to, but I’ve never actually focus group of closing probably because I’m not, That prepared well enough in advance to do that.
Schenk:
Sure. I’m not saying that I do. I’m just, throwing that out there. Okay. So you mentioned rebuttal, making sure that you save some in the chamber for rebuttal. What’s, what are, what’s and what’s something else from that case, I’m trying to think about the the attorney, the opposing counsel in their case in their closing, put up a graph that I’m trying to remember.
It was basically, touches, it was a touches. It was CNA went in or whatever. And I want to say that you came back with. just because it’s on there doesn’t mean that was any type of quality interaction. Can you talk about what did you, did, were you anticipating that before that graph came up?
And if you weren’t like how did the gears grind to figure out how to combat that? Which you did, and it was great.
Carter:
Yeah, I don’t think I anticipated that specifically. I don’t think I anticipated it that specifically. And I think I had to pull something together on the fly, but It wasn’t difficult to do because it was ludicrous what the chart that she put up was talking about the number of times someone brushed her hair and all these little things that that, that demonstrated the level of care that by this point, two weeks into the trial, everyone knew that she wasn’t receiving that level of care was ludicrous.
It was ludicrous. And so the point that I was making was just because they put something in the chart, doesn’t mean it was done because if they had been providing quality care, she doesn’t get to this point. And I think the jury saw right through it.
Schenk:
Yeah. And I want to say in my mind’s eye, it was just, it’s like a graph that has had the names, the number of minutes, I think even.
And then of course what they did, which is mostly ADL care, it wasn’t as though this was an RN doing an assessment. No. And they were trying to say that, you’re acting as though we’ve abandoned her in her own room or whatever. It’s not these people did all these no, that these are not.
These are not interactions that would have anything to do with whether or not she would pass away from a pressure injury.
Carter:
And I’ll tell you one more thing that made that particularly effective is again, going back to the former employees. We, I had done, we had done, and I had done a lot of work finding former employees and spending time with them.
That’s critically important, right? And those former employees. We’re able to say, look, we false charted all the time, right? Just because because of the pressure you’re under. And so they had already undermined the value of the charting that was there. And so it seemed further than that, that they spent all this time brushing hair and doing things that they simply just didn’t do.
Schenk:
And I’m going to say this too. Obviously a trial is so many components, but I Lance your law partner that tried that case with you’ve shared with me the transcript and man, there was a battle. To get the testimony, those employees in that was a massive battle in and of itself.
So I’m really happy that turned out in your favor. Xavier, thank you so much for coming on the show and sharing your knowledge about closings. Again I can’t heap too much praise on you about what I witnessed myself in just that one case. Really appreciate you coming on the show.
Carter:
This was super fun, Rob. I appreciate you having me and let me know if you want to do it again.
Schenk:
And folks, if you have any questions for Xavier, or you have a loved one that has been injured in a nursing home and would like to speak with Xavier he can be reached at Xavier at louriechance.com or you can give him a ring at 678 726 5541 or go to the website, which is louriechance.com.
And folks, I hope that you Enjoyed the content of this episode. I know I did. I know I learned a lot every week with these conversations with professionals and attorneys new episodes of the nursing home abuse podcast come out every Monday for the foreseeable future. You’re a few, if you’re, if we’re all lucky.
And with that folks, we’ll see you next time.
Thanks for tuning in to the nursing home abuse podcast. Podcast. Nothing said on this podcast, either by the host or the guest, should be construed as legal or medical advice, nor is intended to create an attorney client relationship between the host or their guests and the listener. New episodes for NOW are available every other Monday on Spotify, Apple Podcasts, or on your favorite podcast app.
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