Over the past four decades, Lawdragon Hall of Fame member Gary Fox has helped hundreds of plaintiffs and their families achieve justice. In the years since he co-founded his own firm in1984, Stewart Tilghman Fox Bianchi & Cain has become a mainstay of the Florida trial bar and one of the most respected firms in the state. Fox alone has garnered more than 100 verdicts and settlements worth at least $1M for victims of medical malpractice, product liability and wrongful death.
His esteemed standing in the Florida law community is highlighted by his selection as Trial Lawyer of the Year by the American Board of Trial Advocates, Florida Chapters. His work has attained national and international recognition, as well: He was admitted to the highly exclusive Inner Circle of Advocates, limited to just 100 lawyers in the U.S., and the International Society of Barristers, which includes just 600 attorneys across the world.
Lawdragon: Tell me about the mix of practices within your firm.
Gary Fox: We are what many would describe as a boutique civil trial practice with an emphasis on wrongful death, medical malpractice and products liability cases.
LD: You’ve been doing this work for the past 40 years. What do you find professionally and personally fulfilling about being a plaintiff’s attorney?
GF: The most satisfying part of the practice is seeing the profound difference the recoveries we have made for our clients have on their lives.
For example, the parents of a child with severe brain damage as a result of medical malpractice are consumed with uncertainty and fear about how they are going to take care of a child who will require tens of millions of dollars’ worth of medical and related treatments over the course of the child’s life. We have handled hundreds of these cases, and it is so nice to know that the parents of these kids can go to sleep at night at least knowing that they will have the resources necessary to give their child everything he needs to make the best of his life. We still get holiday greeting cards and emails from families letting us know what is happening with their child and family and telling us how much they appreciate what we did for them.
LD: That’s beautiful. Out of all your cases, what would you say is the most interesting matter you’ve handled?
GF: The Terri Schiavo case is certainly the one that has gotten the most media attention. The twists and turns that case took were amazing. Terri was a young woman who sustained severe brain damage as a result of what we said was poor medical care. Our case revolved around the fact that Terri had an eating disorder – bulimia – which her doctors didn’t recognize or treat.
We tried very hard to settle the case, but the doctor’s insurance told us it was a no liability case and refused to offer anything in settlement. We tried the case in Clearwater, Florida and the jury returned a substantial verdict in favor of Terri and her husband Michael. Ultimately, the insurance company paid the entire verdict even though it was far in excess of its coverage, the reason being that, under Florida law, it was in bad faith and was liable for the whole amount.
The proceeds from the case went into a guardianship. Meanwhile, Terri remained in a vegetative state and was kept alive by a feeding tube. When Michael ultimately came to grips with the fact that Terri would never recover, he requested permission from the court to have her feeding tube disconnected. Terri’s parents objected and the battle over Terri became a national and international affair. President Bush and Governor Jeb Bush of Florida strongly opposed pulling the plug. The Pope himself actually weighed in on the issue, also opposing removal of Terri’s life support.
The issue was resolved only after protracted litigation. The trial judge and the Florida appellate courts stood tall and supported Michael’s right, based upon discussions he had with Terri before the incident, to have the feeding tube disconnected.
The case remains a hot button topic today among conservatives and the religious right. My view is that the jury and the courts did everything right in this case. The judges were put under a lot of political pressure to reach the contrary result. The courts courageously resisted that pressure and I see that as a great win for our judicial branch of government.
LD: That is a truly massive case. What kinds of cases are you trying recently?
GF: We recently handled a medical malpractice case involving a 78-year-old woman who suffered a stroke as a result of what we alleged was a medication error. There were a number of challenges to the case including, first, the fact that no one really knew what caused the stroke which occurred well after the time the medication error was made; second, our client had a number of medical problems like atrial fibrillation and high blood pressure, which are known to cause strokes; third, our client’s life expectancy, which plays a large role in how a jury values the case, was pretty short; fourth, the 78-year age of our client; and, finally, that he case was defended by two of the most experienced and competent medical malpractice defense lawyers in Florida.
Fortunately, we had a smart jury that wasn’t distracted by the many phony defenses raised by the doctors. It returned a verdict of $8,000,000, a result we were very satisfied with.
LD: As you should be. What do you find the key to your success is in litigation?
GF: No secrets here. The things that have helped me succeed as a trial lawyer are pretty much what you would expect. The really important things are hard work, preparation and experience. There is no substitute for thoroughly understanding the subject matter of your case and knowing as much or more about it than the lawyer and party on the other side of the case. Unless you are at least on a par with your opponent and their experts when it comes to knowledge of the technical aspects of your case, you and your client are at a disadvantage. There are no shortcuts, but through hard work and preparation you can level the playing field.
Preparation means attending to and understanding every detail relevant to a case. Note that I do not say “every” detail. I have seen many lawyers get hung up and consumed with details and issues not important to the outcome of a case. The ability to identify and stay focused on the critical issues, i.e., those issues that are legally important and which will be of concern to a jury, are central to the success of any trial lawyer.
But hard work and preparation alone will not give your client the best chance of a successful outcome. Experience as a trial lawyer, particularly in the subject matter of the case, is equally important. Without experience, your client is at a severe disadvantage. Experience helps a lawyer understand what facts, evidence and argument will be critical to achieving success at trial. Experience helps a lawyer understand and focus on the key issues and ignore the customary distractions of a dishonest opposing counsel or a difficult or biased judge.
LD: Absolutely. That said, every trial lawyer has had juries return adverse verdicts. How have adverse jury verdicts impacted your practice?
GF: Nobody likes to lose cases. Losses are painful. They mean a jury has rejected you and/or your client and case. It is rejection, pure and simple. That’s the bad news.
The good news is experience gained as a result of losses is invaluable, especially for a younger lawyer. For losses to be valuable, the lawyer must have the courage, judgment and clarity to objectively look back at each loss and understand the reasons behind the defeat. If the lawyer does this and is disciplined enough to avoid repeating past mistakes that contributed to the loss, their practices will benefit tremendously.
I keep a notebook at my desk and after every trial I document the important things I learned during the trial. This is a very good exercise for all lawyers, but particularly for younger ones. Going through this process for cases I have won is far more enjoyable than for cases resulting in defeats but the exercise is far more important in cases that have not turned out well.
Analyzing one’s losses is painful. Sometimes losses can be fairly attributed to bad facts or a bad jury or venue. Those factors themselves can be valuable learning tools. But sometimes the loss can be caused, in whole or in part, by the actions of the trial lawyer. These actions include the lack of a complete understanding of the facts of a case, the lack of preparation of a persuasive and powerful opening statement and closing argument, the failure to prepare effective, concise and clear direct and cross-examination of witnesses and not preparing an over-all game plan and frame for the case that makes legal and common sense.
Early in my career I made some of the mistakes mentioned above. I duly documented them in my notebook and vowed – and this is the important part – never to make those mistakes again. Like all trial lawyers who have been doing this a while, I have made my share of mistakes, but I can honestly say, thanks in part to my notebook which I review before every trial, that I have not made the same one twice.
The bottom line is that I really believe I haven’t learned much from the cases I have won but the knowledge gained from my defeats has been immeasurable.
LD: That’s great advice. In doing that kind of analysis, I’m sure you have noted some of the most common mistakes made by trial lawyers – what are they, and what is your advice on how to avoid them?
GF: Often, we see lawyers falling in love with their cases. By that I mean that early on in a case a lawyer, often as a result of advice given by an “expert witness”, will come up with a theory as to how a case should be prosecuted or defended. Over time, they continually advance that theory through pleadings and discovery and “fall in love” with it. That’s fine, so long as the facts as developed during the course of the case are consistent with it.
The problem comes when the facts and the theory don’t line up. Many lawyers are psychologically resistant to abandoning that theory and looking for another that fits the facts. Sometimes a lot of money has been spent developing a particular theory and the lawyer is understandably resistant to giving it up. By the time of trial, it is often too late. They continue to try to pound a square peg into a round hole. Theories that don’t fit with the facts are routinely rejected by juries. What's worse is that they lower the credibility of the lawyer advancing them in the eyes of the jury.
LD: How can lawyers avoid falling into that trap?
GF: The simple fix is to not “fall in love” with your theory or case. Constantly monitor whether they are in line with the facts as developed through discovery and analysis by experts. You can’t get rid of the facts. As former President John Adams famously remarked, “facts are stubborn things.” Lawyers shouldn’t hesitate to change theories when circumstances call for it. Square pegs will never fit into round holes, and it is no fun trying to make it happen.
The overarching task for every trial lawyer is, through their presentation to a jury or judge, to make it easy for the factfinder to see things your way. Often this means letting the facts speak for themselves and not getting in the way – a concept hard for some ego-maniacal trial lawyers to get.
The importance of focusing our efforts on making it easy for the jury to see things our way cannot be overstated. Critical to accomplish this goal are the concepts of clarity, simplicity and common sense. Everything we do in trial should be grounded in these three things.
If a question on direct or cross-examination will not elicit an answer that is clear, simple, grounded in common sense and which will help a jury see things your way, the question should not be asked. Every statement made in opening and closing should resonate with clarity, simplicity and common sense. Preparation of a game plan for trial that incorporates these concepts takes a great deal of time, thought and celebration but, in the end, it gives your client the best chance of prevailing at trial.