Hal Taylor, Esq.
Reno, Nevada
PHIL CORBOY
Famous Chicago personal injury attorney.
•  How many of your law school classmates left school wanting to be trial attorneys? •  How many became trial attorneys? •  Compare those often unfulfilled dreams with how many licensing cases you will take to hearing in the next year? YOU WIN! F. Lee Bailey –
Famous Trial
Attorney from
closer to my
generation;
handled the
Sam Shepard
case, Boston
Strangler case,
O. J. Simpson
case, etc. Picture: F. Lee Bailey on the left, Johnny
Cochran on the right, both great trial
lawyers. The guy in the middle resides in
Lovelock, Nevada, in a Nevada State
facility. He is not a lawyer. At his law school graduation party (He had
been a Marine fighter pilot and his unit’s
legal officer before he decided to go into
law.), an older lawyer gave him a book.
Inside he had written a dedication to the
effect that:
“When I was a young lawyer, I was
very unexperienced, and I would go
into court and find myself up against
older and much more experienced trial
lawyers.
As a consequence, I lost some cases
that I should have won.
“But as time went on, and I got more
experience in the court room, I
sometimes found myself trying cases
against very green and inexperienced
lawyers.
So, I won some cases that I should
have lost.
“So you see, in the end,
Justice was served.”
Rumpole of The Bailey is a famous, but
fictional English barrister who practices
criminal law.
F. Lee Bailey is also a famous, though now
former, criminal attorney, who was a pilot.
He was an English major in college, and
wanted to write books, so he became a
lawyer, and wrote “The Defense Never
Rests,” “To Be A Trial Lawyer,” etc.
Scott Turow is also a successful lawyer
who turned to writing;
“Presumed Innocent,” “Burden of Proof,” etc.
Jimmy Stewart, the famous actor,
was not a lawyer.
He was, however, a B-24 bomber pilot who
flew about 25 combat missions in WWII.
Rumpole is not a pilot, though he
occasionally drops verbal bombs
on “She Who Must Be Obeyed.”
Joseph N. Welch famously
confronted Joseph McCarthy
during the Army-McCarthy
hearings:
“Have you no sense of decency,
Senator….At long last, have you
left no sense of decency?”
In Mr. Welch’s very capable
hands, justice was served.
I leave it to you to decide if justice
was served by the prosecutorial
actions of Joseph McCarthy and
Roy Cohen, and whose example
you should follow.
Jimmy Stewart •  Played Paul Biegler, a fictional criminal lawyer F. Lee Bailey Joseph N. Welch •  Was a technical advisor for the trial scenes •  A lawyer, played Judge Weaver I do not know if Mr. Welch,
the lawyer/actor, was
also a pilot, or a writer.
But I do know that he rose to
prominence in a famous
ADMINISTRATIVE HEARING.
In administrative hearings the
ultimate challenge for
prosecutors is not whether
“justice” is served, but “truth.”
If you deliver truth to your board
members,
justice should follow.
“To live outside the law, you
must be honest.”
Bob Dylan There are two kinds of truth in the
world:
1. There is what really happened,
&
2. There is what you can prove.
In the law, only the “truth” you can
prove matters. So how do we
prove what is true to our boards?
Who Is Your Audience?
(Assuming that at least one actual
board member will hear this case.)
Each of the following groups
needs to be addressed differently.
1. Nursing members.
2. Public members.
3. Judges on appeal.
4. Hearing officers.
Nursing Members: These in many
ways can be the most difficult. The
level of detail you need to support your
factual allegations for your nonnursing audience may prove
distracting to these members.
And they often bring strong preconceptions into the hearing room that
may not agree with the legal
standards.
Public Members: For those who have
no associated professional experiences
(As opposed to, say, a hospital
administrator, who may not be innocent
of medical care practices.), you have to
be sure they get enough detail to be
comfortable with the nursing members’
findings.
Likewise, Hearing Officers.
Judges on Appeal: Jurisdiction limited
to legal issues. More importantly (Other
than their customary disinterest in
licensing cases.) they will not be able to
ask questions to clarify points you have
not made clear in your case…..
So:
make your points clear in your case.
Another way of looking at cases that
go up on appeal is to recognize that
you are actually trying the case to the
judge’s law clerk
– present it accordingly Sometimes You Just Have To Say
This Dog Won’t Hunt, or
“It’s Only a Small Dog.”
The Watergate Dalmatian Tale –
(Or how I almost got fired by
someone famous.)
What Is The Most Important Question
on the Minds of Your Board Members
When They See You and Your
Opponent Getting Ready To Do To
Hearing?
Why are we here?
What is the conclusion you want them
to come to?
Because Respondent’s stubborn
counsel would not accept your
reasonable offer and settle the case.
How do you plant that seed? Stating the Obvious:
The Complaint As Trial Strategy
Unlike the Respondent, you actually get
to make two opening arguments:
1.The one you make at hearing, and
2.The one you make in your Complaint.
The Complaint is the list of facts you
expect to prove, and a map to where
you connect facts with the law.
So don’t draft it by rote. Ask yourself
if this case is really like all the other
cases like this you’ve see before. Treat the Complaint as your dress
rehearsal for the hearing.
As you draft it, you must already be
thinking about how you will tell this
story at hearing, who your witnesses
will be and in what order, what
documents, and other evidence will
have to be admitted. And where your
case’s weaknesses are.
Put the law references as far away
from the factual allegations as
possible.
The denser and more duplicative the
law references are, the more they
actually distract lay people during
the presentation of evidence.
Ideally, if it’s drafted right, you
should be able pencil in
comments and exhibit numbers
and try your case from your
Complaint. It Sounds Noble, Bit Your Job Is
NOT
to Protect Public Health,
Safety, and Welfare.
Your job is to win your case.
Use the mantra, but identify the good
and bad people, and describe the
personal harm done.
Timeline
Every case. If you can’t keep the
dates and times straight, how do
expect your board members to be
able to.
Include (For your reference.) the source
of each time/place in your Timeline
(Operative report, nursing note, etc.)
(Only matters if you need to defend your
reference – but then it really matters.)
In the Timeline – and on a separate
Witness Summary – identify who you
will use to get this information into
evidence.
Scripts: Good or Poison Ivy
Of the Mind?
Except for questions that need to be
stated exactly right for your expert
give admissible testimony, don’t script
your examinations.
It is too easy to be reading the next
question on your script and forget to
listen to the witness’ answer.
We used to take legal pads full of
questions away from young lawyers
just before they walked into
hearings so that they would learn to
listen and think at the same time. How Important Is Tailoring Your Case
to the Standard of Proof?
Totally unimportant.
At least until you are on appeal.
And if you have not proved your facts
by then, the law will not save you.
What If Your Case Depends On
Equipment/Websites Working
During the Hearing?
Then make sure they work before the
hearing. A story….
Bear Baiting Is Illegal.
Some defense lawyers will
try to rile you up, suck you
into a fight. They can only
do that if you let them.
The “Payment for
Professional Services” story.
A Defense Attorney
Reveals a Secret.
Which prosecutors are the most
dangerous?
Hint: They never yell or pout or
whine.
Another Hint: When they do, the
whole room goes quiet.
Examples:
How do you prove a boundary case
without a boundary statute and the
patient was no longer a patient?
Here is how John Goldberg and I did
it a long time ago….. Drug Diversion Dases:
What do you have to do to destroy the
most popular Respondent defenses:
Someone stole my password; I must
have left the machine open by
mistake; the pharmacist must be
diverting –
Guess which one was true. Make sure the board members
don’t forget the victim.
Remind the trier of fact that even if
the Respondent is a sympathetic
character, someone still pays the
price.
NOW:
Tell Us the War Story You Have
Been Dying to Share
Thank you,
Hal Taylor, Esq.
(775) 825-2223
[email protected]
NevadaLicenseLawyer.com
Citations
“To Be A Trial Lawyer” by F. Lee Bailey, Telshare
Publishing, Inc. (1982)
“Anatomy of a Murder” by Robert Traver (Who
was both a lawyer and a writer.), St. Martin’s
Press, 1983, and
“Anatomy of a Murder” Columbia Films/Carlyle
(Otto Preminger) 1959
“Reasonable Doubts” by Alan M. Dershowitz,
Simon & Schuster, 1996
Anything by the late, great John Mortimer, author
of the Rumpole stories and a fine barrister in his
own right.
Likewise, Scott Turow (Name drop moment.) who
heard my first oral argument in law school. By
the way, ask me how good a lawyer he is.