2017 ABA False Clams Act Trial Institute Days 2 & 3

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IMG_20170616_105326Days 2 and 3 were devoted to the mock trial. The fact pattern for the mock trial involved six bellwether cases of elder abuse at a skilled nursing facility (SNF). The pretend relator was the former director of nursing at the facility. The government intervened in the mock case. The case centered around the claim that the SNFs provided “worthless services” to the six patients.

The opening session was an excellent presentation by Kerri Ruttenberg about trial graphics. Kerri provided terrific guidance about creating, polishing, and perfecting trial graphics and presentation slides.

The remainder of Day 2 involved voir dire, opening statements, and the examination of witnesses for the mock trial. The mock opening statements and examinations provided some good models and teaching moments.

Day 3 began with closing arguments and then proceeded to jury instructions. The mock case was designed to have “good” facts for the relator and government, including some egregious examples of extremely poor medical care by the hypothetical nursing home. However, since the legal standard for “worthless service” claims is a very high bar–the care must be “so deficient that for all practical purposes it is the equivalent of no performance at all”–the case set up a classic trial dispute.

Then we got to watch the jury deliberate. The mock jury, while swayed by the heart-breaking examples of extremely poor patient care, struggled to apply the legal standard. Some jurors were willing to apply a pragmatic approach to the question of whether the services were worthless–looking at the care holistically and finding the care to be worthless. Other mock jurors, apparently persuaded by the defendant’s closing argument, looked at the care as a collection of specific acts and had difficulty finding the care was worthless since not every act of care was deficient. The jurors also struggled to evaluate the difference between merely negligent care and care that was worthless.

Watching the “sausage making” of jury deliberations is always an invaluable experience for trial lawyers, and the ABA’s False Claims Act trial institute provided a fascinating opportunity to watch the process in a trial under the False Claims Act.