Encore Special Episode: Medical Malpractice Trial Debrief with H2H Crew Member Heather Mitchell on her $7.5 Million Jury Verdict

Ever dread facing awkward courtroom moments or uncomfortable topics with jurors? 🥴 

You're not alone.

I recently sat down with Heather Mitchell — a total badass trial lawyer who won a whopping $7.5 million medical malpractice verdict. 

Her secret? 

Bravely tackling tough topics like HPV, sexual history, and invisible injuries head-on. 

Heather shares how she moved past her fear of awkward courtroom silence (cue crickets). 

She reveals exactly HOW she shut down the potential "slut-shaming" defense before it got started. 

Heather proves that vulnerability and authenticity aren't weaknesses — they’re your greatest strengths in court. 

Listen now 🎧 

Xo,
Sari

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"Fear is the saboteur. You have to get all those fears out of your head and remember there's always two cases: the one you litigated, and the one you actually try. A lot of what you're worried about won't even come out at trial. Letting go of that fear and believing in your jury—that’s everything." 

Heather Mitchell

Encore Special Episode Transcription

Sari de la Motte:

All right, well welcome everybody to today's trial debrief with Heather Mitchell. We are so excited to have H2H Crew member Heather Mitchell come and tell us about her win. If you're here on Facebook and you're watching, go ahead and tell us where you're watching from, and of course if you're here in the Zoom platform as an H2H Crew member, you can say hi to me or to Heather in the chat. We will take questions for Heather near the end, you can load those in anytime you like. If you're here in the Zoom platform, please load them in the Q&A feature, not the chat feature, because we won't see those as easily. And in Facebook, if you want to just ask your questions as we go, in there, Christy will grab those for us and we will get to those after we take our questions from the Crew. Another reason you need to join the Crew, because we are opening in another couple of weeks.

Well, welcome, Heather. Thanks for being here with us today. Let me just start by congratulating you on your win. Congratulations.

Heather Mitchell:

Thank you very much. Thanks so much. I appreciate it. And honestly, I attribute a ton of this to H2H, and to you. And to this [inaudible 00:02:33]-

Sari de la Motte:

Wow.

Heather Mitchell:

... that I'm in.

Sari de la Motte:

Well, thank you for that. I can't wait to hear more about that, because we love when this stuff works. But tell us a little bit, give us some background. Where was this case? What was it about? Give us some of the deets.

Heather Mitchell:

Okay, so this case was in Oklahoma City, state of Oklahoma. It is a medical malpractice case. It involved a young couple from Texas, and it involved two corporate defendant healthcare providers. One was a large commercial laboratory out of New Jersey, and another is a large healthcare system, fourth-largest healthcare system in the country.

Sari de la Motte:

Keep going. Yeah, tell us some more.

Heather Mitchell:

Oh, then, you want me to tell about the case a little bit and what happened?

Sari de la Motte:

Yeah, tell us a little bit about... Well, first, before you tell us about the case, actually this is a great point to start with. What were any COVID situations going on? Were you in person, and if so, did you wear a mask? How did that all play out?

Heather Mitchell:

Girl, we are here in Oklahoma. You know, COVID doesn't exist here very much.

Sari de la Motte:

Yeah.

Heather Mitchell:

It's just the flu, right?

Sari de la Motte:

Right.

Heather Mitchell:

So we did, we did this whole trial in person, and we were required to wear masks in the courtroom. When you were speaking though, you could take them off. So the jury had masks, but in large part, lawyers doing all the questioning, the witnesses from the witness stand, did not have masks. I got to tell you, it's a six-day trial. By the end, most people didn't have a mask on. So.

Sari de la Motte:

Gotcha. Okay. All right. So tell us about what, what were you up against? What was this case actually about?

Heather Mitchell:

What I would call the mini opening statement on it, because there's some details in it that I think are going to kind of become important, and you'll pull out and recognize a theme. But anyway, this involved a young couple from Texas, who actually drove four hours from Texas to Oklahoma City, for a doctor's appointment. They had just found out the husband's employer was transferring them to Oklahoma City, and they also just found out that the wife was newly pregnant with their third child. So they are driving up here to establish prenatal care here early, before they even move to Oklahoma. And they've chosen this doctor off the internet. And they've also chosen this particular health care system because it is religious-based.

So when they arrive from Texas, and they get to the healthcare institution, it's beautiful, marble everywhere. And of course, instead of seeing the doctor they've chosen, they're seeing a nurse practitioner. And the reason is the doctor that they have chosen to see is out on maternity leave, herself. So a nurse practitioner is covering for her. This nurse practitioner is actually newly hired to the healthcare system. She works across town, for another doctor, and she's just covering part-time.

So as a part of this initial prenatal visit, they do a whole battery of tests, nine tests. And one of those included a Pap smear. The tests are processed locally, except the Pap smear. Unbeknownst to the plaintiffs, this Pap smear is flown 1300 miles across the country to New Jersey, for processing. And that's going to become very important feature in this case, and I'll tell you a little bit why, in a minute.

But four days after this visit, the plaintiff gets a phone call at home that all her tests are normal. And so, two days after that, the Pap smear results back abnormal. She said that she was never told about this abnormal result, and it is admitted that in fact, the Pap smear for all intents and purposes, was lost.

Sari de la Motte:

Wow.

Heather Mitchell:

I tell you that it was important that it was the doctor's choice, that this was sent to an outside lab. The thing is, when the results come back, the results do not integrate into the content of the patient's medical record. Nor do they go to the patient's portal, so the patient could go out and see her own results if she wanted to. She didn't even have that option. You don't even know that the test has been run, and she had nine tests that day. So the problem in this case was a double problem, because the Pap smear was resulted as the wrong... It was resulted as an abnormality, but the wrong abnormality.

Sari de la Motte:

Wow.

Heather Mitchell:

It resulted as a low-grade Pap smear, when in fact it was a high grade. And high grade is far more worrisome than a low grade because, it's important because, 20% of high grades will go on to produce cervical cancer.

Sari de la Motte:

Mm-hmm.

Heather Mitchell:

This kind of started, this debacle starts a 15-month delay in the diagnosis of this young woman's cervical cancer, and cervical dysplasia. So by the time it is recognized, she has a five centimeter tumor on her cervix, growing out of her cervix like a lime. It's the size of a lime.

Sari de la Motte:

Was she able to give birth?

Heather Mitchell:

Very important point. That was a really key issue in this case. I drew out a timeline and you know, the beautiful thing about it is, because she was pregnant, we had eyes on a cervix through a certain course of time. So we know through the course of this pregnancy, because the doctor was looking directly at her cervix, that it appeared completely normal. And more importantly, when she delivered the baby, she delivered it vaginally. Obviously, through her cervix. And the cervix acted totally normal. A very diseased cervix will bleed significantly. She had normal bleeding. So, hello, causation. That helped me a lot with the issue of causation.

And then, seven, her cervix looked totally normal as she delivered this baby, and four weeks after this baby. And then we have a seven-month gap. And then she starts to have abnormal bleeding, where she goes back in to see the doctor. The doctor actually schedules her for a hysteroscopy, which is actually designed to look for uterine bleeding. And then of course, when she sits down and has her in stirrups to do the procedure, and sees her cervix, she knows exactly what the problem is. Which, was also the first time that patient's Pap smear result was ever opened and looked at by her physician.

Sari de la Motte:

The original one?

Heather Mitchell:

Yep, the original one.

Sari de la Motte:

So what was her outcome?

Heather Mitchell:

Her outcome was, I mean, she had advanced cervical cancer. I mean, at that point, she is in a fight for her life. But you know, as this happens and as time goes, and we had a delay in COVID. At the time we tried this case in November of last year, 2021, she was almost at the five-year mark. Not quite, but almost at the five-year mark. I mean, her outcome is that she is going to survive, but she had the full complement of treatment that you could possibly have. And that's a lot. And it's-

Sari de la Motte:

Yes, it is. As I know.

Heather Mitchell:

... life altering impacts, for sure.

Sari de la Motte:

Absolutely. So let's talk a little bit about... And your verdict in this case was?

Heather Mitchell:

7.5 million

Sari de la Motte:

7.5 million, which is a wonderful... As we know, medical malpractice cases are some of the most difficult cases to try, and they are very difficult to win. The last check that I saw is that we win maybe 20 to 30% of our med mal cases, because it's always hard to sue anyone in the medical profession. So let's start this discussion, then, on what are some of the problems that you had to overcome in this case?

Heather Mitchell:

Well, you know, that's funny because I had a lot, I thought. And then when you look back on a case you think, "Okay, that wasn't that bad. One of the things, because I-

Sari de la Motte:

It's always better when you're done, and you've won.

Heather Mitchell:

One of the things I was so, so, so worried about going into this case, and it was something, because you know, I case workshopped this case in the H2H Crew, I was so worried about cervical cancer, and what causes cervical cancer is human papillomavirus, or HPV. Which is basically a sexually transmitted disease. So I was just absolutely terrified of the slut shaming defense. And the fact that this was the couple's third child she was having, but her first child was by another man, when she was barely 18 years old. So, you know, there was a little bit of that, that I was really worried about was the issue of how, and how are we going to grapple with and talk about HPV, when no one on the planet wants to talk about their sexual history?

Sari de la Motte:

Right. So what did you end up doing?

Heather Mitchell:

Exactly what you told me to do. Sorry. So I'm working this through the case workshop, and talking about how afraid I was of it. You said, "Get this from the jury, during voir dire." And I was thinking, "Okay, yeah, that's all well and good. But I'm terrified. What if you stand up there and you say, "Who here knows, or who can tell me what causes cervical cancer?" And you get no one to say anything. But it turns out that more people knew about it than what I thought. And then once we got into that, and we started sourcing it from them about, you can get HPV, and have HPV, and never know it. It is prevalent. Everyone has it. Everyone who is sexually active has had it at some point in their life. That is a fact. But it came out so much better from the jury, than it ever came from me telling them, that once all that came out and we just started going on that in voir dire, it literally took that issue completely away.

Sari de la Motte:

Yay. I just, first I want acknowledge you, because I can give anybody advice about anything. But until you actually overcome the fear... I'm not the one standing in front of the jury. You are. So I want to acknowledge you, my dear Heather Mitchell, and say, good job overcoming that. And going, "Oh my God, I'm about to talk about a sexually transmitted disease with the jury." And not only that is, "Let them tell me what it's about, and risk standing there and having no one talk to me." And I'm so glad that turned out to not be the case, and it rarely is, but our fears will of course grow there. Wonderful. What other issues did you have in the case that you had to overcome?

Heather Mitchell:

Thank you. Is, as we are, that... When you looked at her, I mean we were five years really, or close to five years away from her treatment, and she looked so good. You know, this was an injury that is not visible.

Sari de la Motte:

Right.

Heather Mitchell:

She had to have a hysterectomy. "Okay, well a lot of women do. So what? People have those every day."

Sari de la Motte:

She already had three kids.

Heather Mitchell:

Yep. She already had three kids. And it did send her into premature menopause but, "Okay, take an estrogen pill. People do that every day, too." And the chemotherapy and radiation were a thing of the past, she had full hair, she looked beautiful. She's a very attractive young woman. And I was actually kind of told this by one of the defense lawyers, as we are litigating this case, he was kind of like, "Okay, so what's the big deal, here?" Like, "She got through it. It's fine."

So I felt like that was something we really had to overcome, because if you looked at this case on the very surface, that actually was all true. But what is little known, and honestly it wasn't documented very well in her medical records, and she didn't talk about it very much. Was the fact that radiation to a woman's pelvis basically renders it a desert wasteland, for lack of a better term, so tissues that are soft and pliable become hard and non-elastic.

Sari de la Motte:

Guess what? Chemo does that too. Won't tell you how I know that.

Heather Mitchell:

But it has a significant impairment on sexual function. But when you want to talk about that stuff in front of a jury, and you want to get [inaudible 00:16:51]-

Sari de la Motte:

Wow, double whammy. It's like, "Okay, now we're done talking about sexually transmitted diseases, let's talk about sex." Oh my goodness.

Heather Mitchell:

Yeah, I know. And then, there wasn't a lot in her medical records. She hadn't talked a lot to her physicians about it. So there was that issue, too. And so finally I had to think, "How the hell are we going to talk about all this?" And I kind of decided in the end we were going to theme this up around the concept of shame, and made it a part of the damages of body image, and those kind of things. And you know, body image is something that is a universal shame trigger, and it is universal for men and women. It's not just specific to women. And so, I kind of had to work around those issues, but I'm going to tell you. It took me a lot of thinking, and a lot of walking, a lot of listening to podcasts and those kinds of things too, to sort of get there. Because I felt like that was kind of one big issue we really had to overcome as well.

Sari de la Motte:

And how did you deal with that in voir dire?

Heather Mitchell:

When we talked about it in voir dire, I'm not sure that we entirely went to that issue. But there was, we kind of addressed it in terms of the money. Because money... And you know, this was something too, that was pulled straight out of, I think you had Randi McGinn come on as a guest lecturer.

Sari de la Motte:

Mm-hmm.

Heather Mitchell:

And you've talked about some of her stuff too, as well. But Randi McGinn had made this statement about, "When you are approaching a voir dire, and talking to a jury about money," and we did this and it worked out beautifully, because we had two corporate defendants. But you know, if these two corporations were fighting about a $10 million contract, and one of them defaulted on this contract and they owed them $10 million. Who here would have any problem awarding them $10 million? And we talked, "Doesn't everybody agree they should be getting their $10 million?" And so then we themed it into, "Why is that different for someone who has been injured?"

Sari de la Motte:

Love that.

Heather Mitchell:

Those kind of things. And then, we set that. I remember you saying distinctly, that one of the approaches was to set that $10 million, so when you come in on close you go right under it. So you look-

Sari de la Motte:

Anchoring. Yeah.

Heather Mitchell:

... so you look reasonable, and you have them prepared for this number. And then, when we came in to close, we just knocked it down a little bit to my ask. I gave a range, but my ask was, the top of it was 8.3. And we got 7.5.

Sari de la Motte:

That's incredible. That's incredible. So what did you have to do, Heather, to get ready for trial in terms of your mindset?

Heather Mitchell:

Oh my God. A lot.

Sari de la Motte:

Which we know, in H2H, is what it's all about.

Heather Mitchell:

The mindset is everything. It is truly everything. And if you can get there, it is the most freeing thing ever. But it's also the thing that I have to continually work on, every single day. And if you fall off, because you fall off of everything, right? Like the diet track, or the no alcohol track, or whatever truck you're on this week. You fall off a lot, but you have to go back to the mindset stuff.

Sari de la Motte:

And so what did you do, to get your mindset right?

Heather Mitchell:

Fear is the saboteur. Understanding, get all these fears and stuff out of your head. And remember, remember, remember, there's always two cases. There's the case that was litigated, the case that you worked up in discovery, and all that stuff. But then, there's a different case, and it's the case you try. And those two things don't always look alike. So a lot of stuff that you were worried about doesn't... Hell, it didn't even come out in trial.

Sari de la Motte:

Right. Yeah, we are great at creating a lot of problems, and I think that's what makes y'all great. Is you go and you go, "Okay, what are all the possible issues?" But there's a time to release that, and then be in trial. Right? So it's like, "I've looked at those, I've dealt with them, and when I get to trial I'm ready to go." Instead of still carrying all of that with us, and having it hang over us as we're actually in trial.

Tell me a little bit about some of the H2H concepts that you used at trial, or how H2H helped you.

Heather Mitchell:

I mean, just like I was talking about the Randi McGinn stuff, and dealing with the money. That's a concept that came, that it may not be specific to your book, but it also came out of all of this. The concept of the opening statement, and it was themed out exactly like you put out in the book, in the structure of it. With the teaching segment right up front, which I thought was so critical in this case. Because you know, there's a lot to cover when you're talking about Pap smears, and we had eight men and four women on this jury. So, [inaudible 00:23:09] don't know very much about pap smears. So it was really critical to set those up in order, like you instruct in the book, and I felt like that was so important in getting us off to a successful start.

Sari de la Motte:

So you taught about what a pap smear is, what it tells the doctor, and how that prevents cervical cancer if you actually look at the God damn result, I'm assuming is what you taught about there. And then you told the story, right? "Well, here's what happened, here." Which is what anyone new to us, listening today, that's what we teach. Here's what should have happened, here's how you use Pap smears, here's what they're for. And here's what did happen." And then the jury can put the two and two together and recognize, "Wait a minute. Something went really wrong, here."

Heather Mitchell:

And then, then also kind of discussing the themes, and pulling out the themes. And I swear to you, sorry, I swear to God. I had this moment in trial where I see you, like on video because that's how I see you all the time, flashed before my face. Because you had said something in a case workshop that had just sat with me, and it was something I had never thought of. Which is, the culprit in this case, who really screwed this case up, was the nurse practitioner. But you made the comment, which is, "Oh, you don't want the jury to feel sorry for her." And my instinct always is, to find the culprit and just beat the crap out of them, just pound them.

And not doing that actually really served me well, because it helped... When I put her on the stand, and she was the very first witness, right out of the box. Which is also kind of a method taught, which is, call them right up front and get them out there. And we got to a moment in the trial where she said something that I thought was just so ridiculous. Like, basically, this is what she said. She said, "Well, I didn't call the patient because I didn't have a phone in my office."

Sari de la Motte:

Oh my God.

Heather Mitchell:

"We're in the largest healthcare system in this state. Do you not have legs?"

Sari de la Motte:

Right, right.

Heather Mitchell:

And that's, you want to... I mean, like, really? And I wanted to just choke her, I just wanted to just pounce on that. But I didn't. And themed it back up, the issue of I didn't want the jury to feel sorry for her, if I started pounding her. And put it back on the healthcare system, and putting her into this situation, where she is brand new to the system, didn't know much about it. Is having to cover someone else's practice that she doesn't know anything about. Didn't know much about their medical records, electronic medical records system. And so I just sort of themed it up back into that, which I don't think I ever would have had the thought process or instinct to do, had you not said, "You know, you don't want the jury to feel sorry for her."

Sari de la Motte:

Well, I'm so glad that worked, and I disagree. You probably would have gotten there, or may have not. Who knows? That's why I think it's such the beauty of the H2H system and community, is that we all get together and we get to all pile on your case. And you get a lot, not just my advice, you get other people coming in and saying things about, that you've never thought about. We have that opportunity every single month in there, for you all to play with that. I'm so glad that that worked out for you.

It reminds me, too, of Jesse Wilson's work who we've also had in many times as a guest expert. Just when Jesse and I met we were laughing, because I'm like, "From Hostage to Hero," and he's like, "From victim to victor, right?" And so it's all about, in his work, finding the true villain. Sometimes, I was working with a client yesterday, sometimes if there's so many villains, if every single person is a villain, the jury starts to tune out and go, "This can't be possible, that every single person was horrible, here. Something's wrong, something's," what? Stinky in Denmark, or whatever that phrase is, right?

So when we get really clear on, "Who are we really going to pin this on," it actually becomes easier for the jury. Because it's more of a believable story than, "Everybody screwed up here, and this is just horrible." Unless everybody did screw up, and there was like, "It's a bad hospital," then great. But it's really, getting clear on who our villain is, it's a huge part of this too. So glad that worked out.

Heather Mitchell:

Yeah, no. It was great.

Sari de la Motte:

Anything else that you want to share about this trial before we go to questions. What was your biggest learning, after having gone through this?

Heather Mitchell:

Hands down, mindset. Hands down.

Sari de la Motte:

Oh, I love it. I love it.

Sari de la Motte:

And when you say mindset, define what you mean by that. Because people listening might be like, "What do you mean, mindset?" Why is that so important?

Heather Mitchell:

You come in, and I think you've said this before, clarity of values. Know that. Get rid of the saboteurs. If you lose, it's going to be okay. It's not the end of the world. Your life is not going to end. It's okay. Just know you've done your best, and then believe in the jury.

Sari de la Motte:

Yes.

Heather Mitchell:

Believe in the jury.

Sari de la Motte:

Did you feel like you got your group, after voir dire?

Heather Mitchell:

Except, I was a little twisted up in voir dire and this is also, we'd go back to mindset issues. Because the judge gave them six peremptory. So he gave each defendant three. And I knew, going into this case, that women were going to be my stronger jurors. And the defense kicked off six women. So it left me with a jury of four women and eight men. And so, the mindset of just letting... You got to let that go, right? There's nothing I can do about that. It's happened. You got to move on to the next thing.

Sari de la Motte:

Well, not to mention that, that's old wiring, right? You all deal in demographics, and age, and gender. We know that it's about the right belief system that they have, and those are the people we're looking at. That said, men may not care about Pap smears, but they do care about sex. So that could have been in your favor as well, since that was one of the damages here, her inability to have sex.

So, yes. So that mindset piece. And we do talk a lot about the saboteurs. Was this your first eight-figure win?

Heather Mitchell:

No.

Sari de la Motte:

Oh.

Heather Mitchell:

No

Sari de la Motte:

Say that again.

Heather Mitchell:

It was a seven-figure win. How do I, maybe I'm not-

Sari de la Motte:

Oh no, the seven-figure win. Thank you.

Heather Mitchell:

Yeah.

Sari de la Motte:

Seven-figure win.

Heather Mitchell:

But not my figure win, either. No. But it is the highest one I've had.

Sari de la Motte:

Wonderful.

Heather Mitchell:

For sure.

Sari de la Motte:

Wonderful. Yeah, we've had so many people come through H2H that either never got one, or never had one as high, because... Not that they learned some great way to control the process, because they let go of control, and were able to focus on what really mattered. And, did you have fun? We tend to hear from everybody that this was so much fun, doing it this way.

Heather Mitchell:

Most fun I've ever had in trial, without a doubt. And then, at night, slept like a baby. I was like, "This is weird. This has never happened to me." Up until that point, I'd had 19 trials to verdict. This was my 20th trial. I'm like, "This has never happened." And my husband was like, "Who is she?"

Sari de la Motte:

I love it. I love hearing this. Okay, let's take some questions. All right, so we've got a couple here in the Crew. If you're here watching, Crew, you can load those up in the Q&A, and once we get through those I'll take some from Facebook. So Rob is asking, "How was your voir dire received by the judge, by the defense, by the jurors?"

Heather Mitchell:

I'm going to tell you, we had a baby new judge. Baby, baby judge. So I would just take that off the table, because I'm not really sure. All three seemed to receive it all well.

Sari de la Motte:

And did you try designed alliance? I'm sure everybody's wondering about that.

Heather Mitchell:

Yeah. Yes.

Sari de la Motte:

And how'd that go?

Heather Mitchell:

It went okay. I still, because you know, I tried to designed alliance again recently. And I was like, "Oh, hell. This..." It's hard. I'm still learning. I still have a lot to learn about it. I do feel like voir dire is my Achilles heel, but I'm going to master it.

Sari de la Motte:

I love it. I love it. You tried it. That's great. Okay. So how was she staged, at the time of diagnosis? What stage was she at?

Heather Mitchell:

First off, cervical cancer is a little bit different than other cancers, because they stage it clinically. So she was staged as a 1B2, when in fact she was probably more like a 2B, after we get the pathology back from... And all of that. But they never, cervical cancer is a little bit odd that way, in that they don't change the diagnosis or the staging, even after the pathology shows something worse. They keep it as a 1B2.

Sari de la Motte:

Gotcha. All right. Arcadia is saying, "I think that's very smart not to pounce on her. The jury will see it themselves." Yes.

So John Coletti, a great trial attorney here in Portland, Oregon says, "I never get so angry at anyone in trial, because then, I want the jury to almost be a little irritated with me. Like, 'Why isn't he more upset? This is so egregious,' so that they get upset and kill them in the verdict room." And I think that's such a great point.

No questions yet in Facebook. Any more questions from our H2H Crew? As they come in with more questions, Heather, tell me what would you do differently, now moving into new trials after having this experience?

Heather Mitchell:

I will tell you that they did assign some contributory negligence to the plaintiff, which just was literally... You get a great verdict. But I will have to tell you, that part was really devastating.

Sari de la Motte:

Mm-hmm.

Heather Mitchell:

I did not like that at all. And they gave her 15%, and it's kind of working on how to continue to undermine defensive attribution.

Sari de la Motte:

Yes.

Heather Mitchell:

It is so hard. And that's another issue that I really want to focus on, going forward, is how to undermine that defensive attribution.

Sari de la Motte:

Yeah. Did you do anything in your challenges section on her, and if they might think she's at fault?

Heather Mitchell:

Yeah, because we went through the whole thing about, "How do you get your test results from your physician? Do you expect them to call you? Why is that important?" They called her and told her her test results were normal.

Sari de la Motte:

Yeah.

Heather Mitchell:

What more do you want her to do?

Sari de la Motte:

Yeah, yeah.

Heather Mitchell:

People get things in their head. I think they got into their head, because we actually got to talk to a juror afterward, and they felt like, the ones that wanted to give her contributory negligence, felt like she should have called for her test results because she had had some prior abnormal Pap smears in the past. So therefore, she should have been on heightened notice. So therefore you should call and just ask about your Pap smear, only. And then sometimes I'm like, "Well, what do you do with that?"

Sari de la Motte:

Yeah, that's exactly what I want to caution you. I want you to say, "Okay, that's something that I want to be thinking about. Yes. But I don't want you to get so crazy about it that you're like, 'This can be solved,'" and not all things can be solved. Jurors are going to be jurors and they're going to have their thoughts. And that's why I asked about the challenges.

If in your challenges section said, "Now, when we took this trial we thought, 'Was this her fault? Why didn't she call?'" And here's what we found. She had nine tests that day, she expected, or whatever. And you answer that question. And that you do it in a way that mimics what the jurors are thinking. We have lots more questions coming in. Okay. How many witnesses testified? Who was your best, quote, unquote, "witness"?

Heather Mitchell:

Oh my gosh. Okay. So first off, going into this case, I counted. There were 11, 11 witnesses total. Nine of them were experts. In some form or fashion. Either a defendant who is a doctor, or that kind of thing. So I mean, a lot of high level preparation cross-examinations. When we get down to the trial and I'd had, it was crazy to me we were trying to this case to begin with. Why are you trying a case where I had an admission, from the hospital, that not only did they not tell her, but that's a violation of the standard of care. They admitted that.

Sari de la Motte:

Yeah.

Heather Mitchell:

The laboratory virtually admitted liability, as well. Their own pathologist testified that she believed this Pap smear was a high grade. She would have called it a high grade, and most reasonable, prudent pathologists would have called it a high grade. That's standard of care, right there. Why are we trying this case? But yet, we were. So I got myself all twisted around the axle, I'm not sure where I was headed with that, but. What was the question? Tell me the question.

Sari de la Motte:

How many witnesses?

Heather Mitchell:

Oh, how many witnesses. Yes.

Sari de la Motte:

How many witnesses, and who was your best witness?

Heather Mitchell:

Okay, so here's where I was headed, which is hell, they didn't call any of them. The defense did not. They did, I [inaudible 00:38:13] witnesses, which were their witnesses. Then our experts, our plaintiffs. They put on one defense expert. The laboratory didn't even call anybody. No one. And still only got 35%, which was just shocking to me.

Sari de la Motte:

Wow.

Heather Mitchell:

Yeah.

Sari de la Motte:

Okay. Rob, "When did you know you'd formed a group? Any particular event that brought it about?"

Heather Mitchell:

I don't know that I could say that.

Sari de la Motte:

That's very high level. Very high level. You normally need to work with someone to know what you're looking for, there. But great question, because we're always looking for that. Were there any offers before trial and if so, what were they?

Heather Mitchell:

Yes. Yes, there were.

Sari de la Motte:

Are you comfortable sharing what they were?

Heather Mitchell:

The laboratory, I knew I could not settle one defendant in this case without the other, they either had to both settle or no one settles. That was my rule going into this, number one. Because if one of them settled, we were going to have a huge empty chair.

So the lab had put a million dollars on the table offer, but it was an offer that was like, "We'll pay a million if you'll take a million. We're not really offering you a million," so basically, it's not subject to counter offer. "But we'll pay a million, if you'll take a million." And then the hospital healthcare system had put on 550. So we were not very far apart, about 10 days before trial, and then the hospital... It was a long story, they're nuts, in a simple manner. But they took their offer off the table, just took it off the table, for reasons no one knows.

Sari de la Motte:

Well, in many ways that's a gift, right? When I'm coaching my trial attorneys, it's always when there's a good offer, but it's not enough. That's where we get the real tension. Now it's like, "Yeah, go fuck yourself. I'm taking this to trial." All right, JK is asking, "I may have missed it. How did the defense attorneys react to the voir dire, and how were you able to try this case in six days?"

Heather Mitchell:

Should have gone on quicker than six days. We had a break in the middle of the trial, I don't know if you guys remember this, but there was... This was kind of a nationwide deal. Kim Kardashian gets involved in this. We had a execution here in Oklahoma that was going to happen, of a young man named Darius Jones. And then, that execution was called off at the last nanosecond. But on that day, which was the middle of our trial, they had sent out an email to all judges that they were worried about the security of the courthouse, and people in the courthouse, and you had to break and be out of there and have your entire staff out by noon. And everybody out.

Sari de la Motte:

Wow.

Heather Mitchell:

So we had that delay, for that reason. So [inaudible 00:41:19] like, this case actually should have gone on faster. And I'm kind of a person that has the belief of kind of, thin to win.

Sari de la Motte:

Mm-hmm.

Heather Mitchell:

Not too thin, but thin to win.

Sari de la Motte:

As thin as you can get it, and still have it not be too thin. I agree a hundred percent, absolutely. I think most of our trials are way too long. Were you able to talk to jurors about principles in the case, like we teach here in H2H?

Heather Mitchell:

Through voir dire, and those kinds of things, and principles of responsibility, as we talked about. Calling for test results, not calling for tests, checking patient portals for information. Yeah, we talked about a lot of principles.

Sari de la Motte:

Wonderful. And John Chilson's asking, "Were you able to use the info you sourced in voir dire during your opening, to create that trial dialogue?"

Heather Mitchell:

Some of it, yes. Some of it, you got to go with... I mean, because some of it set up, right? Like, it's baked into the batter.

Sari de la Motte:

Right, yeah. Most of it. But you're getting it from the jury if you can, ahead of time.

Heather Mitchell:

So that I would say, I was like a superstar on the fly, and got all that set. You know, I had an open. And it was subject to maybe a tiny bit of change, but probably not a lot, because there were a lot of issues I had to deal with. But they would also be issues that would be overlapped in voir dire.

Sari de la Motte:

Yeah, absolutely. I think that's the confusion. People think, "Oh, am I creating a voir dire from what happens in voir dire?" No, no, no. I mean, "I'm creating an opening from..." No, no, no. You already have your opening created, it's just you're going to go and get your jurors to say it before you say it. Right? And give you a bunch of that stuff.

So Charles is asking, "Would you please tell us about how you presented your damage model request to the jury?"

Heather Mitchell:

Ooh. Okay. So in Oklahoma we have a recent Supreme Court opinion that says, that they have approved a per diem payment for pain and suffering. So I kind of went through what that meant. And I thought long and hard about this. I decided that we were going to take a per diem argument on this case, and I went through what it is like to watch someone go through chemotherapy and radiation. Hers was combined chemotherapy and radiation. So she had 39 days of taking combined chemotherapy and radiation. And you know, my mother died of breast cancer. I have watched a lot of therapy, chemo and radiation, being done. And there's always this point where you are looking at your loved one and knowing, just watching this toxic chemical wreck and ravage their body and their appearance. And you think to yourself, "How the hell could this be helping? It's so toxic." And they are just wiped out. Like, you think they're not going to survive the treatment.

And so I went through this and kind of decided that we were going to give her a dollar a second, for every time she had to go through this. A dollar a second. And you know, that came out to $3.3 million.

Sari de la Motte:

Brilliant. Brilliant.

Heather Mitchell:

And then we went on into kind of the rest of her life, and what she would have to endure, given the fact that she is in premature menopause, 21 years. Well before her time. And the loss of fertility, the sexual dysfunction, the fact that radiation is not something that you just have. Radiation is a progressive injury. So there's no question that she will suffer the effects of radiation in the future. We don't know what they are precisely, but we know they'll be there.

And so I kind of gave a range then, based on her life expectancy, that for these things, "If you wanted to pay her $50,000 a year for this loss, here's what your range would be. If you wanted to pay her $100,000 a year for these losses, here's what the number would be." And I gave them the option and said, "This is yours. This is yours to do. You have complete agency over everyone in this courtroom now. The power is yours. You have agency over yourselves, and when you want to take a break, and what you want to eat, and what you're going to do." And just gave it to them.

Sari de la Motte:

That's beautiful. Absolutely beautiful. I think that is also what Joe is asking, over on Facebook. "If you were to ask a question about the fear for invisible injuries, how would you lead into that, and what would the follow-up be?" So did you talk about invisible injuries in voir dire?

Heather Mitchell:

No.

Sari de la Motte:

No?

Heather Mitchell:

I did not.

Sari de la Motte:

Yeah.

Heather Mitchell:

You know, you are welcome to jump in there and answer that question about how you do it, because I'd like to know too.

Sari de la Motte:

Well, I mean, every case is a little bit different. But it depends. Again, our voir dire method is always about, where do you want to go? What do I want jurors to give me? So I would ask Joe, and Joe's going to be joining us as a Crew member in April. I would ask you, Joe, "What do you want the jury to give you? What do you want them to believe about invisible injuries?" And then we design a question about that, right? So if I want the jurors to believe, and again, this isn't about convincing the jurors. I was just on a marketing call this morning because we're doing a big rebrand here at Sari DLM. And we were talking about how what we teach you guys is so similar to marketing.

Marketing is not going out and convincing people to buy Sari DLM services. Marketing is about getting to know the people who already want to buy my service, and getting so clear that they can find us. So it's the same thing in voir dire, right? You're not trying to convince anybody, you're like, "Where are my people?" And then, I'm designing questions to find out where they are.

So, same thing here. If your people are going to think that it doesn't have to be a visible injury to be an injury. Those are just as awful, if not more so, because people can't see that you're injured. Maybe that's the belief. There's so many different beliefs you see, that we would want under invisible injury, there's not one thing. There's many things I want jurors to believe about that. That it's just as, if not worse. And why is it worse? Because people can't see it. And so you struggle alone, all of those things. Then I can design my question about how to see if they find out those things. I'm not going to totally answer that, because that's something to think about, what you want actually the jury to believe.

All right, let's take a couple more. And Scott is asking, "Did you introduce the medical bills?" Sorry.

Heather Mitchell:

Great question. And I did not. I did not. And there had been a case tried in the same courtroom, it was like a car wreck case. Pretty, I mean not horrific injuries, but I want to say back surgery injuries. And in that trial they did not introduce any medical expense, and they actually got a pretty darn good verdict. And I had already planned, I was not going to introduce any medical bills, they were around. I want to say, because in Oklahoma, we can only introduce what was actually paid by the insurance carrier. Well, you always know that's a fraction of what that bill number is, right? And so, I decided it was like around $250,000, or something like that.

Sari de la Motte:

Oh, low anchor. Yeah.

Heather Mitchell:

Yeah, get rid of that.

Sari de la Motte:

Yeah. Nice. That's my suggestion, always. Because it's easier on the jury, I think. Rob is saying, "I've heard radiated tissue likened to wet toilet paper. Hugely friable, limits future surgical considerations." Yeah, I mean, just for me, this numbness that's been going down my arm. They're thinking it's just the radiated tissue now, six months later, it's just squeezing something. So yeah, absolutely, you have issues.

Okay, so Heather, as we are now rounding out the hour, you are an accomplished trial attorney. You've now had 20 trials go to verdict, you've been practicing for a while. Why on earth would someone like you be in H2H, and why should someone like you consider becoming an H2H Crew member? What would you say to that?

Heather Mitchell:

Oh my gosh, I wish I didn't... Well, it probably wasn't available, but if it was. I wish I'd have done this a whole lot sooner. A whole lot sooner. [inaudible 00:51:03] get what they want to get out of this. And if you want to get the most out of this, you can get, it is absolutely there for you. Or if you want little segments, if you feel little segments are what you need in certain areas, that's there for you as well.

And, I [inaudible 00:51:21] really going to try cases and do this, you need this. You need people surrounding you. Because frankly, like a verdict, there's a lot of people that are responsible for this verdict. Not me. I mean, I take a little credit, but there's always tons of people involved. And this community, and being able to get the information you get out of it, is absolutely invaluable. Invaluable. You can't get a better focus group.

Sari de la Motte:

Yeah, that's for sure. Yeah, I love that. I love that. I love that. Yeah. So I don't want to give the impression to anyone listening today that H2H is just for struggling attorneys. It's actually, most of our attorneys have been practicing over 10 years, most over 20, and have had great success. And are ready to just take it to the next level, and have things be easier, and more fun. And that's what we've heard in every single trial debrief. "Wow, this trial was easier than I've ever had before. It was more fun than I've ever had before. And then, we get a great result."

Just yesterday in the H2H Crew, we posted two wins. Just yesterday. Not that it's about the winning, but the more you get your brain managed, and your saboteurs managed, and you just go out there and you focus on what you can control, the whole thing starts to work. And it is easier than you think it is.

So Heather, thank you for being here today. Thank you for being in the Crew. We love and adore you, we're so glad you're a Crew member, and congratulations again on your win.

Heather Mitchell:

Thank you so much.

Sari de la Motte:

All right, talk soon everybody.

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