Interview with Robin Frazer Clark

Robin Frazer Clark has practiced law for over 30 years in Atlanta, Georgia where she owns her own practice by the name of Robin Frazer Clark, P.C. She has tried over 75 trials throughout her career, choosing to exclusively represent everyday Americans who have been injured by the careless acts of others. Inducted into the International Society of Barristers, Robin Frazer Clark has served as President of the Georgia Trial Lawyers Association, on the Editorial Board of The Verdict, and was elected to membership in the American Board of Trial Advocates. Below, she shares her wisdom.

Lawyer Minds: What do you see as a major issue in how some lawyers practice law?

Robin Frazer Clark: I have seen many young associates who are just starting their legal careers behave over-aggressively, almost on a personal level, with plaintiff’s counsel. I sense there may be so much competition within their law firms that they feel like they have to misbehave professionally to get noticed and to appear to be a “bad ass” to their clients in an effort to get more business. Law firms have become so demanding with their billable hour requirements that I see a lot of unnecessary churning of the file by defense counsel. It causes many of them to take a scorched Earth approach rather than a reasonable, professional one to get a matter that should be resolved, actually resolved. I have also seen older attorneys who are opening their own firms take unreasonable positions in their cases and it seems like they are trying to show their clients how “tough” they are in an effort to secure more business. Competition among defense firms has steadily increased and this competitiveness doesn’t usually inure to the benefit of the plaintiff or to the benefit of the Justice System.

When I was President of the State Bar of Georgia, before any decision was made by my Executive Committee, we decided we would first ask “What is the kind thing to do?” This is a standard of practice that should be used more often by more people. Lawyers will find that being kind does not decrease their effectiveness, and, in fact, may benefit their client more in the long run than being rude or mean.

Lawyer Minds: How do you prepare for trial?

Robin Frazer Clark: When I file a case, I assume I will be trying it, especially in medical malpractice cases in which there is rarely any settlement offer made prior to trial. So I begin with a study of the jury instructions and what I am going to have to prove at trial based on those. I read every word of every page in the file again. I make sure I touch every page. I do a final focus group (I will have already done at least one focus group in the middle of the case) just a few weeks before trial. I use this group to focus my demonstrative exhibits, my final themes of the case I have developed and some closing argument thoughts. I practice my direct examinations with my clients in person, word for word. I practice direct examinations with any before and after witnesses. I have every exhibit marked and have a Rule of Evidence listed for every exhibit to be able to get it into evidence. I place the exhibits with the particular witness I will use to admit the exhibit. I work on my proposed Verdict Form. I prepare my Voir Dire and practice my cross-examination of jurors who I will move to strike for cause. I do not want to use notes in Opening or Closing, so I use a Powerpoint that has a simple thought on each slide, it may be a photo or an exhibit, as my launching idea for what I want to say. Finally, I pray a lot. It helps me to focus on the extraordinary task at hand, delivering Justice for my client, and it helps to clear my thoughts of everything other than my trial. Prayer calms me enough to be able to walk in that courtroom every day and do my very best for my client.

Lawyer Minds: Tell us a more on a recent verdict?

Robin Frazer Clark: Fox v. Emory University Healthcare ~ Verdict of $2.35 Million on September 26, 2019.

My most recent verdict (since the Coronavirus court shutdown) was last Fall 2019. It was a $2.35 Million verdict in DeKalb County, Georgia State Court in a medical malpractice case against Emory University Healthcare. Emory is the largest employer in DeKalb County and highly thought of nationwide. My client, Marshall Fox was the only son of a woman, Jayne Fox, who was 74 years old and underwent a surgical biopsy of her lung, called a “VATS” or Video-Assisted Thoracic Surgery to diagnose a small spot on that lung. Ms. Fox was 5 feet tall and weighed less than 100 pounds, so very much the size of a child. She was intubated for this surgery. The Anesthesiology Assistant attempted to intubate Ms. Fox with a standard double lumen endotracheal tube (ETT). According to the medical records, he was unable to pass this large ETT, known as a “35 French,” past her vocal cords. He removed the 35 French and then successfully intubated her with a much smaller single lumen tube (SLT). The 35 French ETT is large and rigid. The smaller SLT is very small and flexible and often used in children. When she came out of the surgery, she had pain on swallowing and a raspy voice. The hospital kept her overnight and put her on a full, regular diet. Within two days she showed signed of confusion and developed a fever. She had difficulty swallowing pills. Six days after the surgery she had a weak and minimal cough, difficulty clearing secretions and a chest x-ray showed aspiration into her lungs. She was placed NPO (nothing by mouth).

Seven days after the surgery, she clearly had aspiration pneumonia. She had an abnormal swallowing study and it was noted in her chart she had sustained a “new” vocal cord injury. I played the videotape of her Modified Barium Swallow, which was abnormal, and you didn’t have to be a doctor to see the liquid going into her lung.  Her attending requested a vocal cord study called a nasophyarangoscopy to be done by an Otolaryngologist (specialized ENT). When the attending ENT received this request or a consult, he was across the street from the Emory University Hospital working at Children’s Healthcare of Atlanta (CHOA) putting tubes in children’s ears. That evening, an Emory resident performed the nasophayarngoscopy and noted it showed Ms. Fox had abnormal bowing (failure to close normally) of her vocal cords “secondary to large double lumen tube trauma.” The resident said he conferred with his attending ENT about this abnormal test, yet the attending ENT never came to see Ms. Fox in person and this ENT consult was not signed off on by the attending until nearly two weeks after Ms. Fox’s death. Most critically, as a result of this abnormal vocal cord study showing Ms. Fox could not protect her own airway, nothing about her medical plan or care changed. There was never any discussion or plan about how to help Jayne Fox get better. A feeding tube was finally placed 18 days after the surgery but Ms. Fox could never get over her aspiration pneumonia. She died 42 days after the diagnostic surgery, having never left the hospital again.

Our case focused on the negligence of the anesthesiology team for even attempting intubation with the wrong size tube in the first place, which attempt tore her vocal cords, which led to her death. We also showed the negligence of the ENT team (or otolaryngology) in failing to do anything to help Ms. Fox in response to an obviously abnormal nasopharyngoscopy and knowing she could not protect her own airway. The jury was out for a week. Using a very elaborate verdict form, the jury found against Emory for the negligence of the otolaryngologists.

In Georgia, in a wrongful death form, the jury is instructed that the measure of damages if the “full value of the life of the decedent.” That’s it. One of the defenses was that Ms. Fox was “old and frail” and aspirating before she ever came to Emory for the surgery. To show why this was wrong, I played several voice mail messgages from Ms. Fox to Marshall that showed how strong her voice was. I called numerous friends and family members who talked about how active Ms. Fox was, going to festivals, getting her hair done at the salon every week, and eating out with friends. Then I showed a series of “goodbye” videos taken by Marshall on her deathbed which showed she was still cognizant, wanting to say goodbye to family members, but she was suffocating from the aspiration pneumonia.

The trial (evidence and argument) took about two weeks and the jury was out for a week. I was scheduled to have a second total hip replacement on September 30, 2019 and I became concerned about whether the jury would come back before then. I am a sole practitioner so I called in another trial lawyer who is a good friend to be ready to come in on Monday, September 30 to receive the verdict in case I was in surgery. Fortunately, the jury came back on September 26, the day before my 56^th birthday and two days before my hip replacement.

Lawyer Minds: What was it like when you got your first win for a client?

Robin Frazer Clark: That has been so long ago I cannot actually recall it, but I am sure it was an overwhelming sense of relief. I did defense work for about 8 years before I opened my solo practice representing plaintiffs in 1997. One of the partners I worked for in a defense firm had a fast rule, the “24 Hour Rule,” about celebrating wins. We were allowed to brag and celebrate for 24 hours, but that was it. After 24 hours, it was back to work and on to the next one.

I have followed that rule ever since, even after a very big win like the trial I describe above. It is a good rule for trial lawyers to follow. Enjoy your win for 24 hours and then on to the next one. Be humble in everything.

Lawyer Minds: What’s your ideal case?

Robin Frazer Clark: The most important thing to make an ideal case is to have a wonderful client, who a jury will love and empathize with and who the jury feels is deserving. As long as you have that kind of client, any case can be ideal.

Lawyer Minds: How can we better educate the population about the importance of laws and following laws?

Robin Frazer Clark: That starts in elementary school or middle school with a strong Civics education. The Georgia Civil Justice Foundation is reaching out to elementary and middle schools with the ICivics learning program. The State Bar of Georgia has an incredible instructional program at our State Bar Headquarters called “Journey Through Justice” in which the children come in from their schools for a day of education about the law. They even try a case in our moot court room that might be the trial of Three Little Pigs or Little Red Riding Hood. The State Bar of Georgia has had over 10,000 Georgia students come through the Journey Through Justice, and we have received numerous letters about how students now want to be a bailiff or a judge or a court reporter or a lawyer. My new podcast, See You In Court, sponsored by the Georgia Civil Justice Foundation, has a mission of educating the lay public about the Georgia Civil Justice System and citizens’ rights within the system. It’s constant education. That includes not putting up with a “lawyer joke” when told in your presence.

Lawyer Minds: How long do you enjoy a successful win before getting back to work?

Robin Frazer Clark: I usually enjoy a bourbon. Or two.

I might take a day or two off because during trial I typically get only 4-5 hours of sleep at night, so I am exhausted physically and emotionally after a trial. I don’t think the general public appreciates the toll a trial takes on a trial lawyer. I get back to exercise, as it’s impossible to exercise during trial. And I enjoy some time with my family. During a trial I have had to neglect my family almost entirely. They are used to it. They know to leave me alone during a trial. But I want to make up that time after trial, and I want to spend some time with my dog, Tux. And I might want to read some fiction and do some needlepoint. Or if it’s good weather, to play a round of golf.

Lawyer Minds: What do you feel are the three main attributes of a successful lawyer?

Robin Frazer Clark:

1. Being impeccable with your word.
2. Never taking anything personally.
3. Never making assumptions.
4. Always doing your best.

Lawyer Minds: What’s one thing we didn’t cover in this interview you’d like to share with readers who aren’t lawyers?

Robin Frazer Clark: People have to learn that without lawyers, their lives would be erratic and unpredictable and our nation would be in a state of chaos. Without lawyers, people would not be able to go to work or make a living. Without lawyers they would not be able to worship freely the way they see fit for themselves and their family. Without lawyers, they would not be able to secure a meaningful education for their children.  Without lawyers, people would not be able to own property and be able to prevent someone from taking that property away from them. Without lawyers, we would not be able to hold a wrongdoer accountable or have any sense of Justice when someone has been wronged or hurt. Without lawyers, we would not be able to enjoy life as we know it.

Also, the license to practice law is a powerful tool. Not just anyone can subpoena documents or witnesses to testify. Not just anyone can sue a person or a corporation that has done something wrong to cause an imbalance of Justice.

Lawyers are entrusted with this power with a mutual understanding that it will be used for good. So when a lawyer sees an injustice, it is the duty of a lawyer to stand up, speak out and use that precious law license to correct a wrong and make the lives of others better and more just.

We’d like to thank Robin Frazer Clark for agreeing to speak with Lawyer Minds.