In this episode of Trial Lawyer Talk, Scott speaks with Brooks Cutter, an attorney with offices in Sacramento and Oakland. Mr. Cutter tells Scott about a wrongful death case that had a profound impact on him.
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Transcript of Episode 52, with Brooks Cutter
Scott Glovsky:
Welcome to Trial Lawyer Talk. I’m Scott Glovsky, and I’m your host of this podcast, where we speak with some of the best trial lawyers in the United States. We simply have great lawyers tell great stories from cases that had a profound impact on them. Let’s get started.
I’m very pleased to be sitting with a brilliant, thoughtful, creative lawyer, Brooks Cutter. Brooks has a national practice. His offices are in Oakland and San Francisco, but he does cases all over the country, and he’s a phenomenal trial lawyer. He does individual cases, class cases, and has a really powerhouse firm. Brooks, thanks for being with us.
Brooks Cutter:
Happy to be here, Scott.
Scott Glovsky:
Brooks, can you share with us the story of a case that had a profound impact on you?
Brooks Cutter:
Sure, I’d be happy to. It’s the more recent cases that come to mind, I can think of a number. I think any time you represent somebody who’s really been badly hurt and you have a chance to make a difference in their life, that has profound impact. Most recently, I represented 12 children, and we tried that case, and fellow TLC faculty member Susie Mindlin tried it with me. My daughter participated in that trial too, Margot, and we got a nice outcome for those kids. It was a very impactful case for me.
Scott Glovsky:
Tell us the story of how it started.
Brooks Cutter:
It really began with a call from Susie. She and Steve Root had had a trial of this case years previously and gotten a verdict and then gotten reversed on appeal, and were really looking for some fresh energy for the retrial. I was going to be parachuting in just a couple months before trial, with really all the discovery being done. Some challenges, ’cause some of the defendants had been settled with, who were some of the bad actors from before … So we really had to discover the story and refocus our energy completely on the one, on the real … on essentially one defendant.
The other challenge of the case was that we were trying to prove intentional conduct in the medical setting, which is challenging, given the level of trust and confidence people have in their doctors in the medical community. But we really felt like it was an opportunity to do that and get a significant general damages award that would make a difference in the lives of these 12 kids.
Scott Glovsky:
How did you go about discovering the story?
Brooks Cutter:
I think step one is always to really get to know the family well. I went down to the Palm Springs area where they lived and spent some time getting to know the family, and really getting to know the fellow who had died, Cosme Camargo Jr., who was really a character, really a great guy, but kind of a larger than life character. He had a dozen children by several different women, and he’d been a meth addict, he’d recovered, he’d worked in the family propane business, he’d coached little league. So there were all these great scenes that you could think of, and then also things that you thought could be potentially devastating to his case.
The way we like to try cases, and you do this too, Scott, is to really try an honest case, where you embrace everything about it, the warts and all. That was how we had to … We had to figure out how to present this guy who we loved in a way to make a jury understand and see him for a real person, and not just some person who had been addicted to meth.
Scott Glovsky:
What were the challenges that you faced, and how did you overcome them?
Brooks Cutter:
We had challenges on liability and damages. On the liability side, you’re pitting a family against the only hospital in town and their staff doctor. We were fortunate to not … We weren’t trying the case in the little tiny town where it happened, we were in Palm Springs, so there wasn’t as protective a sense as there might have been of that small hospital where the events occurred. But nevertheless, it’s always a challenge when you’re trying to have a jury find liability against the medical community who they typically place on a pedestal.
So the first challenge was to frame the hospital and the doctor as not acting in the best interest of the patient, and really to show those entities acting in a way that didn’t just threaten and ultimately kill Cosme, but would threaten anybody, to make the jury feel that this was … the behavior was such and it was intentional, that that’s not something that as a community they could embrace.
Scott Glovsky:
How did you discover that story?
Brooks Cutter:
Cosme had gotten bit by a spider. That was our story, our truth. Their story was that he’d injected himself with meth. He’d fallen off the wagon, he’d been sober for a number of years, and their story was that he’d fallen off and injected himself, and that’s what caused what developed into an infection. He presents at the hospital, either … by the family’s account, an infected spider bite. It quickly develops into necrotizing fasciitis, which is a life-threatening emergency, a well-known medical emergency, that when you have necrotizing fasciitis, it spreads quickly. You’re going to lose a lot of flesh, you have to cut out everything that even has a hint of it, and you have to do it quickly.
The doctor who he comes into contact with is a surgeon with … I think he’s Georgetown trained, and really good credentials, especially given where he was. But I don’t think he treated much necrotizing fasciitis, and he goes in and he doesn’t do as aggressive a surgery as he should have. He doesn’t get clear margins, and he’s planning to go on vacation with his family.
So he sews him up without doing as thorough a job as he should have, and at that point, we portrayed it as him being at a crossroads, where he could go a couple of different directions as a doctor. He could find a bigger hospital, what they call a tertiary care center, and get him the care he needed, or he could dig in and bring the care to the patient. But the option he chose was to just keep him there overnight, and then not … As he got worse the next day and he was due to leave on vacation, to then, about 30 hours later, to start calling around to hospitals to see where he could send him, after, in our view, delaying.
At that point, he calls a hospital in Palm Springs and reaches a young hospitalist, a Vietnamese fellow who didn’t speak great English, and says, “Hey. I’ve got this guy here, he’s got a little infection on his arm, he’s going to probably need a little surgery. Can we send him over?” What he doesn’t reveal is that two hours prior to that call, he’d spoken to a surgeon at that hospital and been more honest with what he’s got. In other words, he’s dealing with a patient with likely necrotizing fasciitis, and that surgeon told him, this hospital’s not the place for your guy. That’s too big for us, we can’t take care of it. He needs to go someplace else like Scripps or someplace else.
He doesn’t tell this young guy that. That guy says, okay, we’ll take him. So they stick him in an ambulance. Three hours later, he shows up at this other hospital. They’re like, what? This is not what we were promised, this wasn’t what we were expecting, and sadly, they put him back in the ambulance, and he goes all night ’til he gets to Scripps, and there, a heroic doctor who testified at trial spends the next 24 hours trying to save him but can’t, and he dies.
Our case is now just about that initial hospital, not the second hospital, which you could also argue, and who had settled out. So we had to really put the spotlight on that first hospital and the decisions, the selfish decisions this doctor made to essentially go on vacation and turf his patient on the basis of a lie. We had to show that was intentional, that decision to not tell the truth, and that Vietnamese doctor came in and testified, and the downstream surgeon at Scripps testified, and they were powerful witnesses.
Scott Glovsky:
How did you go about learning the story that you were going to tell that I’m sure became the cross-examination of this doctor?
Brooks Cutter:
Yeah. We really spent time trying to understand what his motivation was, understand his family situation, understand where he was going, understand what he might have been feeling when he opened up that arm and saw what he was dealing with. We had a nurse anesthetist who was in the OR, a retired military guy, who had assisted in that surgery who, when he saw what was going on, said, that’s necrotizing fasciitis, but was just blown off by the surgeon.
So we really reenacted those scenes in our office, and we tried to get inside the head of that doctor and come up with an approach.
Scott Glovsky:
What did you learn in doing that?
Brooks Cutter:
We learned that he was scared, that he was in over his head, and that he wanted to go on vacation. That consolation of factors led him to make bad choices. Not negligent choices, but actually, affirmatively, deliberate choices, intentional choices that were just wrong, that he was going to not do the definitive surgery the guy needed and he was going to get him out of his hospital at any cost, and send him to a place that had already turned him down. Out of fear, out of not wanting to address the problem himself, and out of wanting to go on vacation.
Scott Glovsky:
Tell us about his cross-examination.
Brooks Cutter:
Really, his cross-examination dealt with all those things, and it dealt with the evidence that he had, and we engaged with the medical record, and … This is 90% perspiration and 10% inspiration trial work. So we had really engaged with the medical record, and we’d shown how there was a draft operative report of that first surgery that detailed findings that were not in the final report. That report had come to light only because it went in the ambulance with him to the second hospital, ’cause the final report, the original shot, showed none of that. So that was an important part of the cross-examination, showing this is what you did first, this is what you saw, and just told our story of what was really there at that time.
Then some of these things, beat with a … You don’t hit the jury over the head with a hammer with it, you just point out … You left for vacation that afternoon. Within 10 minutes of him getting in that ambulance, you were on your way to Palm Springs for holiday. We didn’t belabor that, because you want the jury to draw their own conclusion about that. I always think that I don’t want to be angry as the lawyer, I want the jury to be angry. So our cross-examination of him was pretty direct and pretty … We told our story, and this is what happened to your guy, this is what he looked like the next day, and we just walked through all the evidence. This is what you did.
And that story, told in a … We used deliberate language. You had a choice here. These were your choices. He couldn’t deny that he had a choice to do X, Y, or Z, and this is what he chose. We tried to be deliberate about our language and about the options that the doctor had.
Scott Glovsky:
How did you get the jury to fall in love with your client?
Brooks Cutter:
That was a piece of … We had not all the children, but many of the children testify. We did a lot of work with them so they would each have a little vignette and it wouldn’t be redundant, and there really wasn’t a lot of rich evidence for this guy, about what he did. He wasn’t a guy who walked around with an iPhone doing selfies. But we were able to put together a really nice board that we put up on the screen, I think the visuals are important, where … with the hub and spoke situation, showing different pieces of his life, and we did manage to … It wasn’t easy to find pictures, nice pictures of him with each kid, and him coaching and those kinds of things. We used those visuals, those images, to anchor him as a good guy, and not some kind of a … the meth addict they were trying to portray him as, and just told nice stories about him.
Even though we weren’t making a wage loss claim, because he really didn’t have a big loss of earnings history, we still told some vignettes with his dad who had the family propane business about the kind of worker he was, and just to show that he was a responsible guy, and a good person. That was all of that.
Scott Glovsky:
What surprised you in the trial?
Brooks Cutter:
The first surprise was … we had an interesting panel. We had a mix of people. We had a customs, a border patrol supervisor. We had a whole range of people. Some stay-at-home moms, a variety of workers. But there was a doctor on the panel, and that was really a huge decision we faced. Intuitively and by the book, you would never leave a doctor on a jury like this, ’cause we’re going after a hospital and a doctor.
But my feeling was, after spending some time with him and thinking about my case, that he would be okay for us, and that we really needed somebody who would understand the medicine, and who would also think about significant numbers, because the family was dirt poor, and there’s not necessarily … We didn’t have a lot of people with a lot of money on that jury. It was a pretty blue collar jury, with the exception of this doctor.
So when I finally reversed roles with him and thought about the case he was going to see, I thought about … Our medical people are going to testify. Our retired veteran certified nurse anesthetist, our former Navy flight surgeon at Scripps who spent 24 hours trying to save this guy’s life. I thought, he’s going to identify more with our people than with their hired gun experts and certainly the surgeon who made the lazy, deliberate decision to turf the guy.
So we took a big risk and let that doctor on the jury. I think that was a surprising thing that we did, but it worked out for us.
Scott Glovsky:
Why was this case important? Let me change that. How did it have a profound impact on you?
Brooks Cutter:
I would say on a number of different levels. On a personal level, I felt a lot of love for his family, for … His parents are both still alive and great people, and they really mourned the loss of their son, who they saw as carrying on their family tradition. They’d been there for a couple generations, and even though he’d had such a huge life with several different women and all these different children, they all … he had managed to have a loving relationship with each of them.
For me, that was a lesson that … never to judge people by their life circumstances. Everybody has greatness in them, and people, whoever they are, can be wonderful people and do really … and really be responsible, loving parents. So that was important for me on a personal level.
On a professional level, it was obviously a challenge to come into the case that close to a retrial, and after I saw everything that happened in the first trial, reframe it and then go down there and do it. It was satisfying to be able to do it and to bring it home, and so that was just professionally satisfying.
Then to have the opportunity … This was my first opportunity in the courtroom with one of my two daughters to practice with me, and it was very satisfying to have Margot there with me, really supporting the trial effort, and so quick on her feet with all the evidence. It was great … A perfect example of it in closing arguments, we always try to anticipate what they’re going to do in their closing for our rebuttal. So I had some stuff prepared, but the defense lawyers, as they will, get up and misrepresent the evidence and the testimony, and she was on the fly with the transcript.
By the time I got up, she had slides showing the true testimony. She modified the work, the pieces that we had. As I’m walking through my rebuttal, it’s like, actually, this is what happened. So that was just fun teamwork, and great to be able to work with her.
Scott Glovsky:
Where is Brooks Cutter’s connection to this case?
Brooks Cutter:
I connected to it on a number of levels. I’m a guy who lost my mom when I was nine, so there were kids that young of his, 12, so I really felt like I connected to and understood their loss. I connected to it from the standpoint of … I always feel strongly about corporate indifference. Our defendant was the corporation that employed this doctor, and the doctor, about personal and corporate indifference or affirmative misconduct. That is just something that I feel strongly about. Yeah. Those were probably the main connections for me.
Scott Glovsky:
Did losing your mom at such a young age have anything to do with your story?
Brooks Cutter:
Yeah. You mean personal story?
Scott Glovsky:
Yeah.
Brooks Cutter:
Yeah, for sure. That’s one of those things that changes you, and it changes the course of your life in all sorts of ways. You definitely take that on board, and I think it helps me relate to the losses of some of the people we represent.
Scott Glovsky:
Is that why you became a trial lawyer?
Brooks Cutter:
Maybe. I think why I became a trial lawyer is a combination of things. My dad was a diplomat, Foreign Service, and he had a strong belief in public service. But I didn’t like how bureaucratic and under the control of political … of other people’s decisions that his career path was. He had a successful career, but it was at a whim whether we next went to Caracas or to Spain or wherever, and I just thought, I want a life where I have more personal agency and more ability to do … to control my own destiny, and having a profession like law where you could help people, but also decide your path, appealed to me.
Scott Glovsky:
And you’re one of those rare lawyers where you came out of Stanford and have an impeccable pedigree, and you’re a trial lawyer. You’re creative, you’re representing people, and using that other side of your brain. How do you do that?
Brooks Cutter:
I think Trial Lawyer’s College has been a big part of that. I think it’s pretty easy to get to get hardened and to maybe get away from why you originally started doing something, but what we do, the work we do in the college is all about working on yourself and understanding and finding your personal connection to the story, and if you’re always renewing and doing that and getting to know the people that you represent, then I think it keeps you in touch with your creative side.
Scott Glovsky:
We often get the question from young lawyers, what should we do to grow and learn? What advice do you have?
Brooks Cutter:
I think you have to get in there and do it. I think there’s no substitute for doing it, but I think there’s a right and a wrong way to do it. I don’t think it’s just about quantity. I think it’s about quality. So there’s a school of thought that just spending time in the courtroom is all that matters, but I don’t agree with that. I think it’s important to get in there in the courtroom, be on your feet, but it’s the preparation that you do before you get into the courtroom that enables you to be effective in the courtroom, and you can’t shortcut that.
There’s that 10,000 hours thing that I think people have written about, but you don’t get into an airplane and be a good pilot of a big jet right away. You start small and you do your homework and you study and you work hard, and then you get opportunity. So I’ve been lucky to work with some very talented people, but the most talented people, oddly enough, are the people who have worked the hardest. It’s not a coincidence. They’re people who get big verdicts, but because of their talent … But the people who consistently do the best work for their clients are the people who combine that talent with genuine hard work and caring about the people they represent.
Scott Glovsky:
Do you have any books that you can recommend for young lawyers, or videos, or other sources of inspiration?
Brooks Cutter:
Yeah. Obviously, I think that Gerry Spence’s books are great, starting with Gunning for Justice. It’s the original classic with the Silkwood story and all of that, and of course, he’s got many more direct method books that I think are terrific. There’s a lot of great information out there. I think our trial lawyer community is pretty open. If you go to a COC event or AAJ event, you’re going to pick up some nuggets.
The only thing I would say, though, is that we all are shameless about taking each other’s great little tweaks and vignettes and all that. But you have to make them your own. If I were to get up and try and directly use one of Gerry Spence’s closings or one of some other great trial lawyer’s closings, it wouldn’t ring. It would fall flat, because no matter how well I delivered it, the jury would know it wasn’t my story. So take the idea, the ideas that you’re hearing, but then find a way to make them your own.
Scott Glovsky:
Brooks, thank you very much for taking the time to chat with us, and thanks for the great teaching that you do all over the country, and thanks on behalf of your clients for being a phenomenal lawyer and fighting and getting justice.
Brooks Cutter:
Thanks for having me, Scott.
Scott Glovsky:
Thank you for joining us today for Trial Lawyer Talk. If you like the show, I’d really appreciate it if you could give us a good review on iTunes, and I’d love to get your feedback. You can reach me at www.scottglovsky.com. That’s S-C-O-T-T-G-L-O-V-S-K-Y dot com, and I’d love to hear your feedback. You can also check out the book that I published, called Fighting Health Insurance Denials: A Primer for Lawyers that’s on Amazon. I put the book together based on 20 years of suing health insurance companies for denying medical care to people, and it provides a general outline of how to fight health insurance denials. Have a great week, and we’ll talk to you in the next episode.
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