Few lawyers have succeeded in building and trying more complex, high impact cases than Colorado-based trial lawyer, Jim Leventhal. Join Ben (www.gideonasen.com) for his in-depth discussion with Jim, beginning from Jim’s early days working in the public defender's office while moonlighting in his father’s clothing store, to his journey building one of the most successful plaintiff’s firms in the county. Learn how Jim’s journey included investigating and trying many significant and ground-breaking cases which have changed the legal and medical landscape and made the world a safer place for all patients.
Episode Summary
Few lawyers have succeeded in building and trying more complex, high impact cases than Colorado-based trial lawyer, Jim Leventhal. Join Ben (www.gideonasen.com) for his in-depth discussion with Jim, beginning from Jim’s early days working in the public defender's office while moonlighting in his father’s clothing store, to his journey building one of the most successful plaintiff’s firms in the county. Learn how Jim’s journey included investigating and trying many significant and ground-breaking cases which have changed the legal and medical landscape and made the world a safer place for all patients.
About Jim Leventhal
JIM LEVENTHAL is devoted to helping and improving the quality of life of the clients he serves by putting the interests of the client first. This emphasis on achieving the best possible result for his clients is reflected in Jim’s recognition as one of the Best Lawyers in Colorado and the United States. As the founder of Leventhal Puga Braley P.C. Jim has worked diligently for over 41 years in cases involving medical negligence and serious personal injury, fighting relentlessly to ensure that people receive justice.
Jim Leventhal’s Cross-Examination of an Adverse Party: Complete Transcript
Announcer (0s): This is the Elevate Podcast where trial lawyers learn, share, and grow. Let's talk about how we can elevate our trial practices, law firms, and lives. And now, here are your hosts coming to you from Coast to Coast Trial lawyers, Ben Gideon, and Rahul Ravipudi.
Ben Gideon (33s): Today's episode of the Elevate Podcast is being brought to you by SmartAdvocate. SmartAdvocate is award-winning case management software used to manage personal injury, medical malpractice, mdl, class action law firms all over the United States. Great program. Highly recommended. Check them out at smartadvocate.com. Today's episode is being brought to you by Expert Institute. Expert Institute is the place to go for everything involving experts to help you win your case. Check them out at expertinstitute.com.
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Rahul Ravipudi (1m 18s): Welcome to the Elevate Podcast. I'm Rahul Ravipudi.
Ben Gideon (1m 22s): And I'm Ben
Rahul Ravipudi (1m 22s): Gideon. How's everything going?
Ben Gideon (1m 24s): Things are great here. I had my daughter's first ice hockey game last night. I was really excited about it.
Rahul Ravipudi (1m 31s): I was just gonna ask you about that. How'd it go?
Ben Gideon (1m 34s): Well, she's only been playing hockey now for about two months. So, I mean, it helps. Skating ability is definitely a big part of hockey and she's working on that. But my favorite part of the game was when she ended up caught on the ice with too the, you know, too many men on the ice because she didn't get off on the shift change. So, they put her in the penalty box for two minutes. It was a girl who's before the game. She didn't know what offsides was. She didn't know what icing was, and she didn't know what a shift was.
And now she finds herself in the penalty box. I don't think anybody explained what that was all about. So, there's this great photo that someone sent me that I posted on Facebook of her sitting in the penalty box with a big grin on her face. And later after the game she told me that the penalty box was cozy, which I liked,
Rahul Ravipudi (2m 22s): Dad.
Ben Gideon (2m 23s): So how are things in your world? Are you still torturing your children?
Rahul Ravipudi (2m 26s): I am. I'm trying to find different ways to do it, but, but hey, I don't know if you've experienced this, but, and this may get too personal, but cell phones and teenagers, it's driving me crazy. The, you know, my 13-year-old who's the one I, I really am pushing hard to, to run and do other things. He just loves Snapchat, and it drives us nuts. And so, we got, I gotta take his phone from him every single evening, make sure he gets all his homework done.
And I don't, don't know if you had those experiences.
Ben Gideon (3m 1s): Yeah, I mean, I think every, every parent does, and it will only get worse.
Rahul Ravipudi (3m 5s): Well, thank you for the silver lining. I really appreciate that.
Ben Gideon (3m 9s): So, we're really excited today to have Jim Leventhal on the podcast. Jim is a trial lawyer from Denver, Colorado, one of the nation's top medical malpractice trial lawyers. He's had many huge verdicts, groundbreaking verdicts that have actually changed the way medicine is practiced in Colorado and across the country. He's a member of the Inner Circle. Jim, welcome to the show.
Jim Leventhal (3m 36s): Thank you, I'm glad to be here.
Ben Gideon (3m 39s): So, before we get into your accomplishments as a trial lawyer, I'd like to learn a little bit more about you and how you got into this business. I under, I read a story about you that told me that your, your folks owned a clothing store and you kind of cut your teeth selling suits and somehow transitioned from that to trying malpractice cases. How did that happen?
Jim Leventhal (4m 4s): Well, when I was young, no longer an issue, but when I was young, I decided that I wanted to go to law school and I was working in my dad's clothing store and my dad thought it was a good idea, thought it would be a good business background for me working in the clothing store for the rest of my life. I went to law school and one day while I was drifting off, I wasn't exactly thrilled with whatever I was listening to. I walked across the street to the courthouse, and I found a first-degree murder trial.
Walked into the murder trial and I watched the head state public defender, a guy named Raleigh Rogers cross-examining the coroner in a murder case. And that cross-examination set a chill through my back. Coroner actually admitted that he had lost a piece of evidence and that he lost it because the window was open when he was doing the autopsy. And this hair, which was red, and both the victim and the defendant were dark complected.
Hispanics didn't have red hair. And he said the window was open, it blew away. Raleigh looked at the corner and said it just blew away. And he said it blew away. And then Raleigh took his hand to the window and just took it all the way across the courtroom and said it three times and I could feel justice blowing away. It sent a chill through my back. And I sat there, and I said, I can do this. This is what I wanna do. And so, I decided to actually practice law and I applied to the public defender's office in many other places, I was turned down.
Everywhere I applied, I had eight interviews with the public defenders. I had three letters or three, three times they rejected me in the last time, which was a sentinel event in my life. The letter from Raleigh Rogers said, we are rejecting you, don't apply again. So, I called him, and I said, Raleigh, this is Jim. I received your letter rejecting me. And he said, and I said, and I rejected. He said, you are rejecting my rejection. I said, I am.
He said, can you start Monday? And that set a time. Did,
Ben Gideon (6m 26s): Did you learn later? Why? Why would, why did you get rejected?
Jim Leventhal (6m 29s): I did learn. Did he tell you? I did learn because after I started there, I was pretty successful, which might be an understatement. And after being rocketed through county court and then juvenile court and then into district court, and by the time I was 25 years old, I was trying felonies and being assigned to death penalty cases. I went to see Raleigh and I said, why did you reject me? And he said, because we didn't think you would care about court people. I said, why not? He said, because of the way you were dressed.
I said, Raleigh, my dad owns a men's clothing store. He goes, yeah, we heard that. I said, I, when I tell you I played better in front of juries wearing these suits than the public defenders who were wearing corduroy, sport coats and earth shoes. He said, we figured that out. I said, well, Raleigh, write this down. I just thought about this, but it might be something to remember. Don't judge a book by its cover. And he goes, got it. And he and I got to be good friends. He actually brought me in after I left the public defender's office. And I was only there for about two and a half years.
I got a scholarship to Nita, the National Institute of Trial Advocacy. And I looked like a genius there because I had tried 20 or 30 jury trials and I was up against all these East coast lawyers who had never seen a courtroom. And in the last session, everybody was raving about me except one federal judge who I knew. And he said, Leventhal, it's frightening to think what you could do if you actually prepared. And I looked at him, I said, judge Kain got me.
And so, they invited me to dinner that night, the head of Nita guy named Jim Kerrigan, judge Kain another judge. And they invited me to dinner at Kerrigan's house and they were drinking. I wasn't. And 11 o'clock at night, they called the founder of the Colorado Trial Lawyers and they told him to hire me. So, I went to work, work with this guy. It was just the two of us. I worked with him for about two years, two and a half years. And then I decided to go out on my own. And when I did that, I also learned a valuable lesson.
He said to me when I quit, he was a little upset. He said, how, how many of my cases are you taking? I said, absolutely none. Not even the ones that are brought in. This is your practice norm. And he was so stunned that the next day came in and he gave me 41 cases, 41 of the worst cases I've ever seen in my life. Everything that he didn't wanna do. And fortunately, I was successful on every one of them. And so, I built my practice, you know, by that I never advertised.
It's all by been by word of mouth. I built the practice from me and the only person calling me was my mother to find out, you know, whether anybody called. I was still working on the weekends at my father's clothing store because my salary was $8,000 a month as a public defender, which was a little less than our paperboy was being paid. And you know, I built this practice up by doing court appointments and everything else. And now I have a law firm that has 12 lawyers.
We have about 50 people total. And we are so busy, we can barely breathe. I do cases all over the United States. I was supposed to be in trial in Michigan for the last month, but the defendant who in that case happens to be a lawyer, cuz I'm doing a legal participation, I don't do those very often, but he got the Michigan Court of Appeals to issue an emergency state mainly because he was cornered and had no exit plan. So that case has been going on for 11 years.
Ben Gideon (10m 11s): There's a story I saw about you where the, a juror said he recognized you early on in your career. Tell us,
Jim Leventhal (10m 18s): I was doing my first murder case and I was sitting second chair. And the lawyer who was first here was a brilliant, I mean brilliant trial lawyer. But he told me to pick the jury. And he did that because I like people and because I wanna know about them and, and I engaged them and, and you know, it's easy for me to, to get up and talk to people. So, I get, so while the jury's being picked first the judge does it and he says it is to anybody know anybody, the defendant, the prosecutor.
And this guy raised his hand. He said, I know Mr. Leventhal, but I don't know where I know him from. The prosecutor gets up and asks the same question after half a day and the guy doesn't know. And when I get up, I get to him. I said, Mr. Smith, you and I know each other, don't we? He goes, we do. I said, do you know where you know me from? He goes, I have no idea. I said, well, let me ask you one question. Do you wear a 41 short? The courtroom was packed. There were artists in there, there were reporters. It was a high-profile murder case. Everybody cracked up. And the guy said, I do, you sold me the suit I'm wearing.
And I said, I told you it wouldn't wrinkle. And he goes, you were right. And I gotta tell you that moment probably saved my client from the death penalty, certainly from a first-degree murder conviction. We ended up with a second-degree murder, which was good. And, and you know, it, it was unique. I, I don't know if anybody else can say that, but that's one of the things that happened.
Rahul Ravipudi (11m 50s): Why do you say that that moment saved your client from
Jim Leventhal (11m 55s): Well, you know, I think that when you are in a courtroom and you see and hear the types of facts, in this case it was a sniper kill. And you look at the defendant and his, the defendant and his lawyer probably don't look a lot different to you. You know, when I was out of law school for about four years, I spoke to the University of Denver and my topic was representing the reprehensible. How can you do that? And I think people look at lawyers as part of the, the team reprehensible.
And when they find out you're a human being, when they find out that you actually care and that you're there for a reason, then, then it, it breaks the eyes. When I was speaking and I, I said, you know, my mom on my first day being a public defender posed a crazy question. He said, well what if you're asked to represent a man who's accused of a rape murder, you know, on and on on of a three-year-old little girl. How can you do that? And I said, mom, cut me some slack. I mean, this is my first day I'm in traffic court, you know, but I said to to people, there, there's no way to know it until you shake the person's hand until you realize that you were the only person standing between this person and jail or worse.
And at that point, you know, everything changes. And if you take every case that way, whether it's a civil case or a criminal case or whatever, and you recognize everyone is special, everyone has their own issues and you take 'em seriously, then it works. And you know, I, I told people the best way to build a practice without advertising is to pick one of your clients and call them on a Sunday night. Just tell them what's going on with the case.
Just talk to 'em, find out what's happening. And it doesn't have to be Sunday, but just some night of the weekend, I did that still with two or three clients. And they are so blown away by the fact that I take this time for my personal time that I become their family lawyer and their friend's family lawyer. And you know, over the years it's, it's built. So, you know, we get, I don't know, 10, 20, 30 calls a day or I do just on that and my other lawyers building the same practice.
Ben Gideon (14m 17s): Do you remember your first medical malpractice
Jim Leventhal (14m 20s): Trial? I do. It was two weeks after I started practicing on my own. Well, it was a mystic topic pregnancy that resulted in a hysterectomy. But what I remember about it was, this is in 1980, this year I'm in my 49th year, 40. I've been practicing for 48 years practicing law. But I was getting ready for the trial and I got a call from the defense attorney and he said to me, do you know who I am?
I said, of course I do. And you are Mr. So-and-so. And and I know his name, but I don't wanna repeat it right now. But and he said, do you realize that you don't have a chance in this case? And I said, actually, I thought my chances were less than that. And and he said, well, I'm gonna make you an offer that you can't refuse. I said, okay. And he offered me $3,000 and I said, I have to refuse it. And he said, why? I said I wouldn't know what to do with my sheriff.
And so, we went to trial and I called as my first witness, his client, and I completely eviscerated this guy. I just completely blew away. And that night I come home and it was before answering services, you know, we did have rotary phones, but before answering services and, and my phone was ringing off the hook and I picked up the phone and it's this lawyer and I said, hello? And he goes, it's so, and he said, I just wanted to tell you you did a really good job.
I will. I said, well thanks, you know, I'll see you tomorrow. He said, no, I'm gonna settle the case. I said, no, you don't. Your Mr. Defense attorney and I don't have a chance. He said, I'm gonna offer you. And at that point he offered me half of what I had demanded and I said, we're not communicating. And so, then he offered me the full act. Well, I still have one other defendant in the case. So, I settled with him, went to trial against the other defendant, the lawyer representing that defendant was a complete jerk to me.
I mean, just as condescending and horrible as can be. I won the case. It was a modest verdict. I won the case. The lawyer came up me afterwards and said, I've never lost a case before. And he was so rude and so horrible to me. I said, get used to it, you're not that good. And that's how I started.
Ben Gideon (16m 49s): That's a great way to start your malpractice trial career, I would think. And you've gone on to, I mean, you do other kinds of cases, but you're known for specializing in malpractice cases. Why, why did you, doesn't Colorado have some difficult law on for malpractice?
Jim Leventhal (17m 7s): It is horrible caps or limitations on noneconomic damages. There is no real limitation on economic loss. And the reason I did it was no one my age was doing medical malpractice work. There were some lawyers that were decades older that were doing it, but no one my age. And when I was a public defender, I did a, a case where there was an insanity plea, and my cross-examination was horrible because I didn't understand the medicine.
So, I decided if I'm gonna do this, I really needed to understand the medicine. And so, I started and, and actually the first, one of the first cases I got that came into me when I opened my practice was a man who called me and said, I got your name from, and it were people I played golf with, said, do you have time to see me? And my calendar was completely wide open. I had nothing on it except in the court appointments. And I said, sure, anytime said came in, he said his wife went in to fit someone's hospital for a hysterectomy.
And she came out without her right leg. Are you interested in the case? I was sitting behind my desk and my desk still had the price ticket hanging from him. I leaned forward and without telling him, I pulled the price ticket off. And I said, I am. And so, he goes on, he said, I'm thinking of two of the lawyers. And he named the two biggest name trial lawyers in Colorado. And he said, why should I hire you? And I looked at him, I said, you shouldn't, I wouldn't if I were you.
I said, those are the two lawyers have great reputations. They'll do a great job, but you wouldn't be here if you hadn't heard something about me. Is that you thought was good. And the difference, what I can offer you that they can't offer you is this case will mean more to me than it will mean to them. And I'll give you more personal service. He left. I called my mother and I said, someday I'll get a case like that. Three weeks later he called me up and he said, you're hired. I said, why? He said, because you were honest with me.
And that's how it all began. But I do cases all over the country because I have developed a reputation and people call and ask me for help. And I have, it's worked. It's worked well. I mean, I, my probably the case that made the biggest difference that I've done in my career was a case for a 80, 80-year-old woman who contracted AIDS from a tissue graft.
So, what she had was she had to have her knee replaced and when, I'm sorry, her hip replaced. And when you have a hip replacement, the bore out hip socket and they fill it with either a synthetic, which in this case was methylate or donor bone from a, a cadaver. And she said, I don't want blood cuz she heard about aids and this is in 1993. But in spite of that, they gave her donor bone.
Well, bone is mostly blood and she contracted aids. They had, the CDC did this entire story, it was on the front page of the Jennifer Post, this woman contracts, aids the CDC had identified her. This is the first non-case of this happening. And so, her family called me and asked me to look into it. And I looked into it and I found out that the donor was a man who'd been murdered, Virginia. And he had been in prison, he had tattoos, he had a habit of sleeping with prostitutes.
He, and, and at that point, the M M W R, which was the publication for the C D C, had published something that said, don't accept blood or tissue from somebody's high risk. And then they listed in addition to the homosexual community, people with tattoos, people with multiple sex partners, et cetera. So I found out that the tissue B industry was only doing antibody testing, which will show a positive test, but only after six months after you've been exposed.
And that wasn't effective, which is why screening was important. They weren't doing any of that. And as a result of my case, the Center for Disease Control, the FDA, everybody changed the way that tissue banks were monitored, mandating, extensive background screens, social screens, et cetera to make sure it was done. I was on the c b S news, I was on Dateline, and as a result of that, I was asked to go to other states because this man's tissue and organs were shipped all over the country.
So, it changed everything.
Ben Gideon (22m 16s): Wow. That's, and there's a, there's a part of that I, I think you described in the article I read about it, where you got some information from a, a whistleblower type of witness. Can you tell us about that?
Jim Leventhal (22m 30s): He worked for the tissue maker and he called and he had his voice disguised. And he called several times to see if I was the real deal. And then he said he would meet me in the Memphis Airport. I thought I was in a Grisham novel, right? So, I go into the airport and he is meeting me in a room, and I had arranged to have this videotape, but he was in a complete disguise. He had a hat on me, had mustache you the beard. He had a trench coat, his voice was disguised.
He said, if they find out I've done this, I will be killed. And he told me that they were doing no screening. That the whole purpose of this was to make money, even though they were called themselves a nonprofit. And the way they would hide that would be to put it in a building fund. And so, I started looking into this and there were points where I was concerned for my own life. I mean, there were, there were threats, there were, you know, all sorts of things.
But it was, it was pretty funny too. I mean, it was parts of it. There was tragic as it was. I took the deposition of the decedent murder victim's mother who told me that he hadn't been sleeping with prostitutes. I said, how do you know that? He said, well, he had breakfast every day. And he would tell me who he slept with the night before. I said, you had a very special and unique relationship with your son.
Ben Gideon (23m 58s): Oh my
Jim Leventhal (23m 59s): God. And then I took the deposition of his girlfriend, who this is in West Virginia, who had teeth, but only three of them and was tattooed everywhere and couldn't complete a sentence. And I said to her, I understand that you are a topless dancer. And she said, not a topless dancer. I said, you're not a topless dancer. What are you? He she said, exotic. I said, exotic. What's that?
Do you mean exotic? She goes, yes. And she goes, what's the difference between a tapist dancer and exotic dancer? And she went like this. She said, PIIs. She then got really mad at me and told me that her boyfriend was the CEO of Hell's Angels. And he was out in the parking lot. And this is all recorded and I'm, I'm videotaping it. I said, hell's Angels has a CEO. At any rate, she walked out. But that was part and parcel of the discovery process, which is one of the things I love about this.
I mean, you just have to enjoy it to the, to the, to the most best you can make the most of it. And if you assume we're someplace, find it, you know, don't, don't shy away from it.
Ben Gideon (25m 13s): The most important question of the interview, Jim, if, if there's is a John Grisham novel that will then become a movie about that case, which actor would you select to play you in that film? I was thinking maybe a Mel Gibson, you know, and slightly younger. Mel Gibson. What do you think, Rahul?
Jim Leventhal (25m 34s): No, I wouldn't use Mel Gibson to my trash, but I would use you. I I don't know who I would use. You know, I actually make a great screenplay because it was just unbelievable.
Ben Gideon (25m 47s): Rahul, you got any ideas?
Rahul Ravipudi (25m 50s): I mean, there's just too many.
Ben Gideon (25m 51s): There really
Rahul Ravipudi (25m 51s): Would, too many quality actors to to
Ben Gideon (25m 54s): George Clooney,
Rahul Ravipudi (25m 55s): Perhaps? Yeah, George Clooney would be perfect. Perfect. Hey Jim. I wanted to ask a question, just kind of listening to you and listening to your story. It sounds like you came into the practice of law, both with that grit and hunger, but also with extreme confidence. How did you have that and how did you maintain that throughout your practice?
Jim Leventhal (26m 20s): Well, I, I had confidence as somebody who'd had a lot of courtroom experience. I had cross-examined, you know, I had tried 20, 30, 40 jury retrial. I mean, I was in trial as a public defender constantly. And so, I gained that confidence. The confidence to cross examine a doctor is a whole different, different world. And it's terrifying, quite frankly, because they go to medical school, I haven't, they learn the medicine.
I haven't. So, in my first case, when that, when that guy hired me for his wife who lost her leg as a result of a hysterectomy, I went and met with a friend of mine who was my father's age, who was an OB gyn. I said, explain the medicine to me my, I mean, I was completely fogged over. I said, I don't understand what you're talking about. And then all of a sudden a light bulb went off. I said, these are just pipes, aren't they when you're talking about the aorta, the main artery from the heart and then branches in into the common iliac and then branches into the internal, into the external.
Those are just pipes. And so, what he did when there was a bleed, is he tied off the wrong pipe, cutting the circulation to your leg. He said, that's absolutely right. And so, what I've done, and I do it to this day, is I study each area of medicine, each issue as detailed as I can. I just finished a brain surgery case where a tumor was removed from the fourth ventricle. It's considered to be the most, if not the most, but one of the most serious brain injuries you can do.
I studied each facet of that, the neuromonitoring, to see what their standards were. The neurosurgery monitoring for the neurosurgery part to see what you should, what type of experience you, you must have the anesthesia, what kind of anesthesia was right or wrong from when I went into it. I knew what I was talking about. Which, which leads me to something else. And, and I'll tell you, I think this is an important thing to share with people. Years ago, you know, I think it was 2009, I went to a convention in San Francisco and at the time I had broken my legs.
So, I was on crutches, and I was watching Pat Malone, who's also a member of Inner Circle, give a speech. And after the speech he looked at me, I was probably 10 rows back and he said, Jim, he goes, our next speaker just canceled. Will you speak? And I said, sure on what he said, whatever you want. So, I got up and the room was, was pretty full. And I said, the topic of my speech is why you should never believe your own expert. And people just, I mean, got very quiet.
And I said, I said, and let me tell you what that is, people just rely too much on their expert. And that's can be wrong one way or another. And one of the cases, probably one of the most important cases I ever did involve a 15-year-old who had heart surgery. And she came outta the surgery with a horrific brain injury and death. I sent that case to three separate heart surgeons. Each one of them said there was no case and I didn't believe them. So, I sent it to a fourth one and the fourth one and I met and we spent a long time together and he said there's a case, he was right, there was a case, but he had the wrong reason.
And so, I ended up hiring the head of heart surgery at a Boston Hospital. And by the time I finished with the, while, while I was doing the case, the Denver Post announced that children's hospital in Denver would no longer be doing elective heart surgeries pending the outcome of my case. They were sending all of their surgeries to Boston Children's or Stanford. When my case was over, children's hired my expert to redo their program.
I never forgot that. And to this day I have people tell me there's no case. And I need to make sure for myself, I need to research for medicine, I use lister. I find out if other people have done cases like this. And sometimes I agree and more often I don't. But I can tell you that it has made a huge difference in my practice. One of my most important cases was a woman who came to see me. I had been practicing for probably 10 years and she said, I have a case that has been turned down by, I think she said 11 other law firms and the law firm you were with turned this case down.
Will you talk to me? And most people would say no. Right? She brings in the file, it covers my entire conference table. I'm looking at it going, it would be easy to say no because there were thousands of pages of records. And I said, tell me why you think you have a case. So, she tells me and she tells me about this neurosurgeon. She thinks he's gonna support it. So, I go to the neurosurgeon and I am just in a fog about the medicine, trying to understand what, you know, ventricular peritoneal shot is, which is just a drain full of brain when you get hydrocephalus, when you get swelling in the brain.
But I said, I understand that, that you will answer my some questions. He says, I'm not gonna volunteer anything, but I will answer any specific question you have. And I thought to myself, oh great. I don't know enough medicine to ask the right questions. So, I looked at him, I said, okay, what happened? And an hour and a half later he finished, we did the case. We were successful not only in winning a lot of money for this young kid who was a high quad, but who was mentally intact.
But it also allowed him to go to college and get a PhD in math and become a full professor of math at the University of Washington. But it also again changed the way that heart surgery, that brain surgeries were done, their brain surgeries done and brain after surgeries were cared for at the local hospitals and nationwide. I think
Ben Gideon (32m 26s): That's such a great topic and and a good illustration of that. I, I find the same thing in doing the medical cases is that I don't rely or trust any expert to answer the critical questions. I want to know the answer myself based on as much data and literature and reading and understanding as I can. And then if they can give me credible reasons that I accept, I will eventually accept it. But I don't accept anything without understanding it. And I think that that's probably something you need to bring with you to, to do medical cases because even for people we hire as plaintiffs, the bias is to find reasons not to do it most much of the time, particularly if it's difficult.
That's such a good topic and I'd love to, and we could spend a lot of time on that, but I'm, I'm interested in going back to your philosophy and approach to cross-examining doctors and probably applies to the PI lawyers that are listening as well as the medical lawyers. Cuz you often have to examine doctors and even though we can bone up on the medicine and become very proficient perhaps in the narrow subject of the cross, we're never going to match their level of knowledge and expertise, you know, or depth.
What has been your approach to successfully cross-examining doctors and what advice would you give newer lawyers who are trying to figure out maybe going into that first trial where they have to do that cross-examination, how to come out of that without bleeding to death?
Jim Leventhal (34m 5s): Well, I, I think that experience, the more cross-examination you do, the better you're gonna be. And I had lots of experience cross-examining witnesses as a public defender, including doctors on occasion. But my takeaway is there's no formula, none. You have a case, and you have a doctor and the doctor has is the defendant. Well, it is critical when you're doing the defendant's deposition to get a rule from the defendant, a rule of medicine.
Okay? And let me tell you why I say that. In every malpractice case, the jury instruction across the nation is literally the same. The standard of care is what a reasonable doctor in the same or similar specialty would do under the same or similar circumstances. And that's given to every jury. And so, in closing argument, I say this is the instruction you've been given and it's the same instruction given whether this is a brain surgery, whether it's a missed skin cancer, whether it's an infection or whatever.
And that tells you how, gives you a general framework. But our job, my job in this trial was to tell you exactly what the standard is so you can compare the defendant's conduct to that standard and see whether they met that, that standard. And so, what I do when I'm taking a defendant's deposition is I will say at some point, let's say it's a missed infection, what did the standard of care require that you do on August 15th, 2015, to rule out an infection?
And the answer I got was the standard required that if I suspected an infection to do a tissue and fluid biopsy, now we have a rule, now we have a rule. Now the only issue is did he suspect an infection? Should he have suspected an infection? And he had already admitted that each of the 11 times that he saw my client infection was on his differential diagnosis.
In, if you get a rule and you get it from the defendant's mouth, it can't be any better, right? So, then you create a PowerPoint or you just give a closing and you say in closing you're saying, okay, this is the rule and it come from him. And his experts agreed to that. Cuz I asked him, do you agree with the defendant that if he suspects an infection and this is what's required? Yes. And everybody said that had that been done at that time, an infection would've diagnosed and she would not have lost her arm.
So, I have a plan and you get as much as you can from the defendant. What did you do? How much time did you spend? It's case specific if you're doing a radiology case, right? What are the two main reasons that radiologists missed findings? One is they read it too fast and two is they're too focused. So there's literature on why radiologists missed findings and that literature says that they should read the film Before looking at the reason the film was ordered.
In a case that I tried in, in, in Covington, Kentucky, the radiologist missed an obvious brain bleed. And when I looked at the audit trail, it showed that he had spent exactly 72 seconds reading 153 diagnostic sleds. And we could tell that because of the time he opened it on the auto trail to the time that he closed it and dictated his report.
So, I ask him, without revealing it, how much time did you spend? He said, I spent seven minutes, 10 minutes. And then at trial he knew that I had actually put together a PowerPoint could you can time the PowerPoint slides. That actually times out to 0.048 seconds. But because I'm a really good guy, I rounded it up to 0.05 seconds and then I timed the slides all 153 of 'em and shot and played it, played it for the jury. And he goes, well I didn't understand your you're gonna do that for the jury.
But I actually spent 10 minutes doing this. I said, doctor, that's worse. You looked at this for 10 minutes, the jury can see this and they have no training. So, you've got to, you've got to look at each case, each thing. I mean, you know, why are they there? What is it? What is the Achilles heel? What are they trying to cover up? And it's gonna be something, it really is. There's gonna be something they've nuanced something so that they say something, they're gonna say, I mean, you, you can bet in a meningitis case they're gonna say the symptoms were not significant enough to do this.
And you can read somebody, I don't, I don't always take depositions anymore. But in a meningitis trial I did. The doctor said, well, his fever wasn't high enough. And at that point I knew that this guy was gonna go over, but he's gonna go crazy. I said, well, his fever was 106, how high did it need to be? At least 107, if not 108. And I said, and what else did he need? Well, he needed to have focal neurologic deficits. So paralyzed, yes, at least paralyzed. Right? And you can see how stupid that sounds and how ridiculous it sounds.
And they take known risk factors or known whatever, you know, known signs and symptoms and they gloss over them. But you also have to have in mind whatever the defense is. And so typically the main defense that terrifies most lawyers, malpractice lawyers is he used his judgment frightening, right? So I take that on head on and I said to a doctor, I said, doctor, and this was a defendant. Is it true that a physician can provide substandard medical care even if they claim they've used their very best judgment, even if they've used their very best judgment?
And he said, yes. I said, how that can happen? How can that happen? He said, well, if they use their judgment without doing the adequate tests, without getting inadequate history, without, with, with missing warning signs and on alone. And so, you want to go, okay, what are the warning signs? And, and you know, I I ask open-ended questions. I say, tell me every single sign and symptom, Mr. So-and-so had of an infection to the defendant. It's a horrible question for them.
Cuz if they say none, they're toast. If they say any, they're toast. And quite frankly, I like toast. So, you know, it's, it works.
Ben Gideon (41m 14s): Do you ask open-ended questions at trial or are you talking about depositions?
Jim Leventhal (41m 17s): Sometimes both. It, it really depends. You don't want and ask an open-ended question for which there's a good answer to that. Well get, get them out of it. I mean, I took the course at Nita where I forgot what the name of the lawyer was, his famous, he came over the hill carrying the 10 commandments of cross-examination. You know, never ask an open-ended question, but sometimes I do. And you know, I, one time I was taking the, the deposition of the head of heart surgery at Texas Heart, he had replaced a baking and he walked into the room and he didn't even get sworn in.
He said, he just starts talking. And he said, let me tell you why you don't have the case. And I said, all right, go for it. Right? You have to being sworn in. And so when he got done, I said, did you see this record, ear record that said this? He goes, no. I said, may I tell you why you're wrong? And he said, sure. And I started cross-examining him using the record, and he looked at me and he said, this is videotape too. He said, you might be right.
I said, doctor, it's not a mite. I am right, aren't I? And he goes, you're right. And he just got up and left. It's a weakness. There will be a weakness if you are on the right side of this, there will be a weakness and you need to identify it. And, and the other thing you can do is that if you are working with a team of doctors taking care of somebody, you can more often than not create what I call a circular firing squad where one doctor says, I, I told, I I relayed this information and I asked the other people on the team, did you ever hear this?
Absolutely not. I did that in this brain surgery case. Every single person claimed they did something that the other said didn't happen. And we got to the settlement conference, the mediator said, what's your theory? I said, it's a circular firing squad. And when I wasn't going getting anywhere, I took 'em all out individually, you know, and negotiated with them each separately and, and got a fabulous result. But, you know, the, the, the theory is, and you need to work with somebody who's done this.
I mean, I help young lawyers. People call me, they tell me what's going on. And I say, all right, well you have a soft tissue case and you've got somebody who says their back's hurting. And so, I, I, I took a deposition of a doctor, he said, well, I had, you know, something happen, I was gardening and I pull the muscle, but every morning I do my exercises and when I do them, I'm okay. I said, you've been doing this for, for decades. He goes, yes, that's terrific. You know, that shows this soft tissue injury can be permanent.
I mean, he makes, he becomes my best damages witness. So I'm looking for something in everyone. And the question about, you know, what my approach is is, you know, I've got a deposition tomorrow of one of the huge team of people in Arizona who was caring for, for a guy and she didn't do her job. I mean, you read Mark Mandel's case framing. She didn't do her job, she didn't do her homework, she glossed over things. You know, this is a Medicare patient, they want a Madeline Hospital because Medicare doesn't reimburse.
You know, you're looking for every motive possible and that's just the top of it. You've gotta, you know, be as thorough as possible.
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Rahul Ravipudi (45m 29s): I feel like Is, is cross-examined one of you cross-examination one of your favorite aspects of trial? Or are there other parts that you, you favor or truly enjoy?
Jim Leventhal (45m 40s): Well, I I I love cross-examination, but you gotta be careful when you do this and not to bring it home because, you know, I got into an argument with my wife and she said, CRI cross-examining me. And I said, I am not cross-examining you and would you please limit your response to just my question?
Ben Gideon (45m 57s): Yeah. That, that can be dangerous to mix our civilian and professional lives.
Jim Leventhal (46m 3s): But I do love cross examination. I love the whole thing. I mean, I'll tell you the single best place in my opinion to practice law in the United States is Oregon State Court. Because in Oregon state court there are no expert disclosures. You don't know who the expert is or what they're gonna say until they get on the witness stand. It's trialed by ambush and both sides love it. Cases settled because on their merits, not based on how well you can beat up the other side.
And it really is a test of a true, true trial lawyer. My favorite place to go in tri cases.
Ben Gideon (46m 43s): Yeah, that's pretty extreme. I mean there's a number of states where you don't have expert depositions. Massachusetts, New York could be two examples, but not even knowing who the experts are is that, so you can't do any prior background research into that person. Right
Jim Leventhal (47m 2s): At the beginning of the trial, the judge says, who are your witnesses? And the lawyers as a routine when it comes to their experts, mumble them so nobody can hear what the name is. And then typically a lawyer will have a team in the courtroom when the expert is called and they are doing frantic research on that witness to find out what they can find to do whatever with. But I can tell you that it is more terrifying for them for the defense than it is for a seasoned trial lawyer who has cross-examined people.
Because in Oregon, if they're not taking depositions of defense experts or plaintiff's experts, they really don't have the experience that out-of-state lawyer has coming in and doing this. Or a lawyer from Morgan that does it in Washington as well, or in federal court, et cetera.
Ben Gideon (47m 57s): Yeah, it sounds fun. And also, like something that would advantage somebody like you who's very skilled at, at cross-examination. I mean, one observation I have in a lot of the malpractice cases is that I often, we, we really demolish the defense experts at the deposition if we depose them, but they're able to troubleshoot and rehabilitate themselves to some extent by the time you get to trial because they're, you know, they're smart and they can figure out once they know what, where you're coming from, how to and, and with medicine, there's always an answer to everything, isn't there?
Whatever you say, there's always, they can always come up with some response that doesn't, even, even in a wrong limb amputation, they have answers to that. So, it's, if you give them the, the questions in long enough in advance, they'll come up with a, some kind of answer to it.
Jim Leventhal (48m 51s): Well, let me tell you what, what I do with that, okay, first of all, I take every deposition, I videotape every deposition and now it's zoom cuz all my depositions are by zoom. Second of all, at each break I ask the witness, have all of your answers been truthful? Is there any answer you need to change at the end of the deposition? I do the same thing. When I get the depositions, I sync them using trial director or whatever it is so that if a witness changes their testimony, I can instantaneously put up, make a clip and put up a clip and show them saying the exact opposite thing.
But when they change it, and, and, and I also say when I take a deposition, I say, you understand that if you change your testimony during this deposition or at trial, that change can be used, can be considered by the jury to determine whether to believe anything you say at all. And they always say, I understand that. And I go, is that fair to you? And they will inevitably say yes. So you don't look like a jerk when you do it.
So, I, I think that's, that's critical. But also you, you, you know, you need to understand what are the main weaknesses I see of lawyers is they don't know how to defend or they're not using the right things to defend their case. So their expert deficit is taken in what the defense's goal is to say there's no standard of care, no definitive standard. So the questions are going to be, doctor, do you agree that there's a range of a standard of care?
And I prep my witnesses, if you believe there's a standard of care and you don't think there's a range. And your answer is, if you're talking about this case, the answer is no. Do you believe doctor, that reasonable experts can disagree? Again, if you're talking about this case, the answer is no. Well, my doctor is a, is a board certified, he said of this program and he's whatever else he's, he's, he's a reasonable doctor and he disagrees. You're talking about the facts of this case and there can be no disagreement.
And that's why the rules of the road, which is Pat Malone's thing that I've taught at that seminar is so important. And sometimes those are so hard and so steadfast like medication errors, the five Rs of medication, have you heard of those?
Ben Gideon (51m 22s): I have not.
Jim Leventhal (51m 23s): The five Rs, right? Patient medication's gotta be given to the right patient. It's gotta be the right medication, it's gotta be the right dose in the right route at the right time. And if there's a violation of any of those five Rs, it is substandard care. It is malpractice. And so, if you are doing a case where the wrong dose of a drug like Lamictal, which is used for bipolar disorder and they give the starting dose that's wrong and they develop Steven Johnson's syndrome or even worse, toxic epidermal necrolysis and go blind or lose all their skin, the wrong dose is not a judgment call.
There's no exception. And so, if you type in five Rs on Google, you'll see that this is universal and there's other rules that, that are just as strong for a variety of other things.
Ben Gideon (52m 23s): So are you, you said you are, you've been doing this now for 41 years and you have a, a large successful practice. I think you have 12 or 13 lawyers now. Are you still having fun or are you hoping to spend more time skiing?
Jim Leventhal (52m 39s): It's 49 years. 41 was a decade ago. Am I still having fun? I love it. I just love it, you know, and sometimes we have a case screening committee in my office and you know, we look at cases, but the, it's important that no matter what your gut reaction is, you need to verify it. You know, especially when there are significant consequences, you know, that the person has has sustained.
So, your gut reaction may be that somebody declined a test, so it's his fault and he's in an emergency room, but the record says decline, but will have an outpatient. But in order to know whether that's the right thing, you have to know what emala is. The Emergency Medical Transfer Act, which says it's a federal law that mandates that when a patient presents for an emergency evaluation at an emergency room or any place in the hospital or is seeking an emergency evaluation, that they have to do an adequate screen, which can require imaging before discharging.
So, if there's a consideration that a patient may have an acute arterial occlusion, which is a blood clot in an artery and that's on their differential and he needs that test, you don't say you can have it later cuz there's only six hours to correct it before you lose your leg. So you need to know, and, and if the person isn't given an ama ama against medical advice form, doesn't sign the poliform declining the test saying that he's been advised of the consequence of not having it, then you have a case and it's a good one.
Ben Gideon (54m 33s): Yeah, that's important. I I do think a lot of patients who seek help from lawyers probably get turned away for reasons just like that.
Jim Leventhal (54m 43s): I'd say most of my cases have been turned down by other law firms. I'm not saying we don't get a lot of direct cases, but some of the biggest cases we've ever had have been turned down by the one I was saying about was turned down by 11 lawyers. And that turned out to be an enormous, enormous case. But it's, it just requires really doing a due diligence, which is fun. I mean, a seasoned malpractice lawyer has a better view of medicine than any specialist because the specialists are tunnel visions and they don't see what's outside of what they're looking at often.
And, and you've gotta have a 30,000-foot view as well as, you know, close up view and it makes a world of difference. I've had doctors, you know, I, I had somebody call me and she said, telling me what happened to her and I asked her a couple questions. I said, you had a growth hormone secreting tumor, didn't you? Pituitary growth hormone secreting tumor. And it was this blank on the line, said, I went to seven doctors, how'd you figure that out in seven minutes?
And I, until it was over two centimeters. She goes, you're right. I said, now you have diabetes and you have heart disease and you have all these, she goes, you're absolutely right.
Ben Gideon (56m 2s): Yeah, that's, that's pretty good. I mean, we, we see so many fact patterns. I think issues spotting like that becomes something trial lawyers be, are, are, are good at. But
Jim Leventhal (56m 13s): That's why if you use our entire, our entire group as a team, whatever that group is, the, the American Association of Justice and run it by people, there's gonna be somebody that's done one of these that'll be able to
Ben Gideon (56m 26s): Help. If folks, if folks have a, a case like that or one they're struggling with and they want to get in touch with you, how do they reach you? What's the best way to get in touch
Jim Leventhal (56m 36s): If you just type my name Jim Leventhal into Google, you'll find me. The law firm is Leventhal Puga Braley Bruce Braley. Jim Puga is the past chair of birth trauma. Bruce Braley is in trial right now in Iowa. He's a fourth term, was a fourth term. US congressman who unfortunately lost his senate race in Iowa. And when he lost, I called him and asked him what he was doing, and he said he was interviewing with law firms on the East coast. I said, no, you're not. I said, you're coming to Colorado.
So, he joined us, but it's 11th pare in Denver, and you can find us that way. We, we do know TV advertising, we don't. I had to be, you know, my arm twisted to even have a website.
Ben Gideon (57m 20s): I think that's a good idea. Thanks for doing this, Jim, and keep up the great, great work. Looking forward to hearing about your next big result. Jim,
Rahul Ravipudi (57m 29s): Thanks so much for joining us.
Jim Leventhal (57m 32s): I will tell you that I am to help anybody because I love it and I love helping young lawyers. I think it's important and I think that's part of what we do. Thank you for having me on. It means the world to me. I have a lot of respect for both of you, for your firms and who you are and what you're doing and, and because I think we're doing work that is so critical to patient safety and to people all over the country. So, thanks.
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