About me

A selective practice with direct lawyer attention.

I am a litigator whose practice centers on serious medical negligence. Medical malpractice is the overwhelming majority of my active work. I remain open to select other matters within my scope, including insurance bad-faith work and some business or contract disputes, but the practice is built around serious medical negligence.

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How I think about lawyering

My credentials are on the home page. This page shows how I think about legal work and the kind of lawyer I try to be.

Most of the excerpts below are from my past work.

I love my work. At its best, lawyering brings together intellectual rigor and creativity, moral seriousness, and caring — to end in practical help for someone who's been hurt.

Excerpts from past work

Moral seriousness

As a kid, I wanted to be a preacher. I knew the world was broken (though I didn't know the extent of it). I still have an occasionally annoying moralistic streak: I can't stand bullies. Lies offend me. It disgusts me when people won't own up to mistakes that hurt others. The following excerpt is from my 2020 book Lawyers, Judges & Semi-Rational Beasts: Cognitive Science and Persuasion:

"The idea of the lawyer as an amoral technician debases everyone who embraces it. Lawyers sometimes talk of lawsuits as a game, with all the moral consequence of a poker tournament. ... But in most of our work, someone has harmed another person either carelessly or deliberately — or has been wrongly accused of doing so. We may disagree about what the truth is, but the truth matters. ... Most of our work sags under the cargo of moral consequence. If we participate in causing or perpetuating an injustice, we bear some of the blame. A bar card does not immunize us from moral responsibility."

Honesty & integrity

The stereotype is true: There's a shocking amount of dishonesty in litigation. This is ironic, because formally at least, the legal system is built to demand honesty and punish dishonesty. But somehow the legal culture has come to accept an enormous amount of dishonesty. I do not accept that. The following excerpt is from a motion I filed in 2026:

It cannot be that Dr. [redacted] is as limited in knowledge as her interrogatory responses make her out to be. Presumably she and her lawyers thought the misrepresentation of her knowledge was permissible. After all, this is litigation, and it's conducted through language, and language is always to some degree indeterminate. So who's to draw the line between falsehoods and harmless word games? And don't lawyers do this sort of thing all the time? How can it be held against this Defendant when others do it so often? That sort of argument would do more to condemn than to exculpate. Who's to draw the line? The Court, that's who draws the line. Do lawyers flirt with dishonesty all the time? No, but they do it often enough — and that shames us as a profession. The law does not recognize an "everyone does it" defense. (And not everyone does it.) The Defense will want to say Dr. [redacted]'s responses were so obviously false that it was Plaintiff's burden to file a motion asking the Court to compel honest answers. But as shown above, that is not the law. A party is bound by what it swears to. It is not Plaintiff's job — or the Court's — to protect Dr. [redacted] from unwise falsehoods.

Fair, decent, & reasonable — but tough

I don't yell at people, and I try to keep my language civil even when I very much want to be uncivil. I try to remember that we are all frail creatures in a fallen world. We all need a little grace from time to time. But precisely because we are frail, we must have accountability. Better rules make better people. The less accountability, the more wrongdoing. In a 2022 case, I believed the defense expert committed perjury at trial, and that the defense lawyers knowingly sponsored the perjury. The following excerpt is from my motion for sanctions against the witness and the lawyers:

"INTRODUCTION At trial, Emory’s hired witness, Dr. Guzzi, testified that Jeni Carswell suffered a cardiac arrest during her “Code Blue” event from 6:26 AM to 6:43 AM. That testimony was false. The Code Blue record shows that Jeni had a strong heart rate and blood pressure during the Code Blue — and that no CPR was ever performed (which it would have been, if her heart had stopped pumping blood). As Dr. Guzzi acknowledged in his deposition, the presence of blood pressure and heart rate means the patient has not gone on to cardiac arrest. As Dr. Guzzi also stated in his deposition, Jeni Carswell “never” had cardiac arrest. His contrary testimony at trial was false, and intentionally so. Emory’s defense boils down to a simple rhetorical move: redefine cardiac arrest as cardiac or respiratory insufficiency. Even for a non-medical person, this should sound suspicious. ... To support their re-definition of cardiac arrest, Emory would need to produce compelling evidence. Despite three months and the virtually limitless resources of Emory and Jones Day, neither the lawyers nor Dr. Guzzi have identified a single piece of medical literature to support their re-definition of cardiac arrest. Dr. Guzzi cites no literature at all. The lawyers cite only one piece of literature, a continuing-education article — which they misrepresent. Despite the vast body of medical textbooks, scientific statements, peer-reviewed journals, etc., Emory cites only this one continuing-education article. From that article, Emory quotes only this passage: “Cardiopulmonary arrest (CPA) is the cessation of effective ventilation and circulation. It is also known as cardiac arrest or circulatory arrest.” Emory relies on the word “effective” in that sentence to support Dr. Guzzi’s statement that insufficient respiratory or heart function constitutes cardiac arrest. But that same continuing-education article refutes Emory’s insinuation. Thus, the article Emory cites goes on to say that a patient in cardiopulmonary arrest has no pulse. Emory did not quote this passage for the Court, although it’s on page 6 of a document that’s only 8 pages long. Given the importance of the issue and the time and resources available, it seems unlikely that Emory’s new, additional, further act of misleading the Court was inadvertent. Dr. Guzzi lied under oath. Emory sponsored the lie. Now, instead of owning up to the falsehood, instead of accepting responsibility or even trying to excuse it as confusion or attempting some other good-faith-mistake excuse — instead of anything resembling honesty, Emory digs in and adds fresh misrepresentations to their prior perjury. . . . CONCLUSION

When a man takes an oath, he’s holding his own self in his own hands. Like water. And if he opens his fingers then — he needn’t hope to find himself again. — A Man for All Seasons

I swear that I will truly and honestly, justly and uprightly conduct myself as a member of this learned profession. — Georgia Attorneys Oath

Emory has created a stress test for the integrity of Georgia courts. Is it OK for powerful litigants to sponsor perjury, or is it not? Is the oath only for the weak? Is it only for fools? George Orwell understood the psychology of the strong dominating the weak. He learned this from growing up in boarding school — where bigger kids made smaller kids engage in rituals of degradation, like forcing them to lick boots, and worse. In 1984, the character Winston comes up against the secret police, who compel him not only to say that 2+2=5, but to believe it. Mercifully, we do not live in an Orwellian state, and though they’re big, Emory and Jones Day are hardly the secret police. But that would make it more degrading to cede to their insistence that “cardiac arrest” does not mean what it means. One might understandably kneel to a torturer — but to a mere hospital company? To a law firm? Yet Emory insists we accept that “This was not a cardiac arrest based on the heart actually stopping….” (Response, 7.) That is QAnon-level absurdity. Yet Emory obtained even a former US Attorney, to sign his name to the absurdity. And we, and Jeni Carswell, and even the Court are expected to bow to Emory’s fraud. No. The stakes on this motion are high, but it would have been so easy — so absolutely free of difficulty — for Emory to have avoided the problem. Emory had only to refrain from a lie they were under no pressure to tell. They had other defenses. Honesty would have required no special courage, just common decency. After trial, in responding to this motion, it would have required some integrity for Emory and Dr. Guzzi to own up to the perjury. Even then, however, it would have required no more than we demand of children. We teach children to own up to their wrongs. Emory/Guzzi are better equipped than a child. Owning up to their false testimony would not have required the moral heroism of a Martin Luther King, Jr. or Dietrich Bonhoeffer. Equally concerning here, though, Emory’s corrupting influence extended to new lawyers with no personal exposure, no reason to sign onto Emory’s deception except the banal incentive of getting the business. Daily, in law offices throughout America, lawyers give clients the bad news that they have no case. As to specific issues, many of us have told clients, “No. I’m not making that argument.” Many of us have withdrawn pleadings or withdrawn from a case, when we learned the client had misrepresented facts, or when we otherwise learned a case or position lacked merit. But there’s something different about Emory. In The Crucible, John Proctor could not sign his name to a false confession, even to save his life — “Because it is my name! Because I cannot have another in my life!” How is it that here, Emory got a former US Attorney to sign his name to their deception? Emory’s Response repeatedly expresses concern for the professional reputations of Dr. Guzzi and the lawyers — appealing to personal collegiality and the all-too-false feeling that of course respected professionals do not commit serious wrongs. But nowhere does Emory express concern for the offense to the judicial system. Dr. Guzzi at least tacitly acknowledges the gravity of the offense. In his affidavit, Dr. Guzzi cloaks himself in umbrage, expressing “deep, personal offense” and saying, “[A]s a veteran, I have taken an oath to protect and defend the constitution of the United States. In my mind, that includes the entirety of the judicial process and I have far too much respect for the court and the judicial process to lie.” This show of piety is empty, but at least it acknowledges that perjury is a grave offense. Emory could not bring themselves even that far. Emory thinks it is safe to lie in Court. Emory thinks thereby to doom Jeni Carswell to a life of disability deepened by privation. This is a hard motion. But either the integrity of the courts means something, or it doesn’t. Either the oath matters, or it doesn’t. Either the courts merit respect, or they don’t. If the latter, then we should abandon the pretense. But if the former, Emory’s sponsorship of perjury must meet fair and proportional consequences — a remedy that shows lying to a court is not safe."

Intellectual rigor & creativity

There's no way to show intellectual rigor & creativity in a short excerpt. Instead, I'll present the comments of other lawyers on a book I published in 2020 — Lawyers, Judges & Semi-Rational Beasts: Cognitive Science and Persuasion. The book was an effort to synthesize a decade's worth of reading in cognitive science, and to make it useful for working lawyers.

Some of the lawyer comments:

“You can spend the next 5 years reading every good book published on persuasion, or you can read this one elegantly written book by Dan Holloway. But this is more than a summary of what others have written; it is a brilliant integration of what others have written into a powerful perspective on persuasion for the trial lawyer.” — Richard H. Friedman, Inner Circle of Advocates; co-author of Rules of the Road; author of Polarizing the Case and On Becoming a Trial Lawyer “This book manages to combine sound practical advice for lawyers with a profound meditation on human thought, motivation, and behavior.” — Louis Michael Seidman, Carmack Waterhouse Professor of Constitutional Law, Georgetown University Law Center “A fascinating analysis of the inner workings of the human mind and how lawyers can apply that knowledge to persuade different types of thinkers. A valuable analytical tool for any attorney’s arsenal.” — Robert J. Dwyer, Boies Schiller Flexner LLP “This book distills a library of cognitive science literature into a concise description of how human beings think and decide. Dan Holloway’s book provides the bedrock from which all lawyers should work. It is required reading for anyone who wants to persuade.” — Lloyd N. Bell, medical malpractice attorney and member of the Inner Circle of Advocates

Analytical & compassionate

Reason without emotion is heartless, but emotion without reason is foolish. Persuasive power comes from combining them.

In a 2025 brief I filed in the Utah Supreme Court, I asked the court to overturn a century of precedent endorsing the perverse doctrine of sovereign immunity — the doctrine that the government (and every single governmental employee) has a privilege to hurt the rest of us without accountability. That was a big request, and the chances were slim. But the best chance came from combining analytical rigor with emotion.

Here's the Introduction to the brief:

“The Utah Constitutional Convention of 1895 considered and rejected a limited sovereign-immunity clause. It would have applied to the State but not to other government entities or to employees. On Day 38 of the Convention, Mr. Eichnor proposed a clause stating, “The Legislature shall not pass any law authorizing suits to be brought against the State.” The Convention rejected that proposal.

The Constitution did not (and still does not) contain any provision for sovereign immunity. To the contrary, Article I, § 11 of the Constitution guarantees redress for every injury: “every person, for an injury done to the person in his or her person, property, or reputation, shall have remedy by due course of law….” The Constitution makes no exception for injuries committed by government entities or their employees. The Constitution was adopted by people whose parents, or they themselves, had been harassed, sometimes murdered, and driven from their homes by government-sponsored actors.

The Constitution recognized claims against the State. Article VII, Section 13 gave jurisdiction over such claims to a Board of Examiners. (That jurisdictional provision was repealed by Constitutional amendment in 1992.)

Looking beyond the Constitution itself: The territorial laws before adoption of the Constitution, and the State laws shortly after, also contain no provision for sovereign immunity. To the contrary, in a multitude of ways, the statutes confirm the State, other government entities, and their employees could be sued for torts.

If the Constitution includes a sovereign-immunity clause, it is unwritten, a ghost-clause. Advocates have supposed sovereign immunity was such a basic part of federal law and English common law that the drafters of the Constitution took it for granted and forgot to write it in. That would be odd, since the drafters remembered other basic things — e.g., “All men have the inherent and inalienable right to enjoy and defend their lives and liberties,” “All political power is inherent in the people,” etc.

In any event, sovereign immunity was not a basic part of the background that could be forgotten. As to English common law: In the 1700’s it, too, provided for government actors to be sued for their torts. John Marshall, born in 1755 and later Chief Justice of the United States Supreme Court, knew English common law from direct experience. In Marbury v. Madison, 5 US 137 (1803), he wrote, “In Great Britain the king himself is sued in the respectful form of a petition, and he never fails to comply with the judgment of his court.”

Early federal law was the same: In 1793, the US Supreme Court decided Chisholm v. Georgia, 2 US 419. Chisholm concerned debt that Georgia had incurred during the Revolutionary War. Chisholm was decided by a court of Founders. Each of the five Justices was a practicing lawyer before the Revolutionary War. Each had participated in the adoption of the US Constitution. By a vote of 4-1, the Court ruled against sovereign immunity. Even after the 11th Amendment was passed, the Court applied it narrowly until after the Civil War.

The belief that sovereign immunity was baked into English common law and the federal constitution is historically wrong. As the legal historian Susan Randall puts it, “The history of sovereign immunity in the United States is a history of mistakes.”

In 1913, this Court decided Wilkinson v. State, 42 Utah 483. Wilkinson became the fountainhead of sovereign immunity in Utah. Even Wilkinson acknowledged that government employees were liable for their torts. Wilkinson reversed a judgment finding a state engineer liable — not because the engineer was immune, but because he was not negligent. See 42 Utah at 488-92. After dicta suggesting sovereign immunity for the State, the Court added, “we do not mean that state officers, or state boards, or state agencies may not, under certain circumstances, be sued in the courts.”

Over time, sovereign immunity expanded. In 1966, the Governmental Immunity Act purported to grant immunity to every governmental entity and all their employees. Today, among the hundreds of thousands of government employees, there is none so humble but they can claim a privilege to commit torts against the people.

In the century since Wilkinson, no one has shown how the Utah Constitution contains an unwritten sovereign immunity clause that would override the Open Courts clause. Nor has anyone answered the obvious question: What would have motivated the settlers of Utah to grant their new government a privilege to commit torts against them? How could that happen without a public debate? Where did Brigham Young advocate for such a privilege? Where did anyone?

In the century since Wilkinson, this Court has repeatedly endorsed the doctrine of sovereign immunity, sometimes on 3-2 split decisions — usually based on precedent, not reasoning. In 1950, for example, in Bingham v. Board of Education, 118 Utah 582, on a 3-2 split, the Court majority “prefer[red] not to disregard a principle so well established without statutory authority.” Justice Oliver Wendell Holmes thought it “revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV.” In 1950, Wilkinson had only 37 years behind it.

With the notion of sovereign immunity, the Court has created a de facto Constitutional amendment. But the power to amend the Constitution is reserved ultimately to the People. The de facto amendment violates the separation of powers. Insofar as the Governmental Immunity Act overrides the Open Courts clause, the legislature and governor also violated the separation of powers, by encroaching on the power reserved to the People.

As it has coursed through Utah law, sovereign immunity has left a trail of human wreckage in its wake. In Bingham, a three-year-old girl was severely burned by an incinerator that a school put by a playground. In SH v. State, 865 P.2d 1363 (1993), the government negligently hired a driver who then raped a deaf child. In Tiede v. State, 915 P.2d 500 (Utah 1996), the government negligently supervised a pair of felons who then killed two mothers and assaulted their daughters. In Scott v. Utah County, 2015 UT 64, county workers negligently let a prisoner escape. He approached Mika Scott on the Provo River Trail and beat and assaulted her in the bushes. In the present case, police officers ignored clear signs of danger to Gabrielle Petito, and it cost Gabby her life. Not a year later, in amici’s case, three-year-old Hunter Jackson was decapitated by a car driven by a felon high on methamphetamine. The felon was on the streets because of negligence by the government. Hunter was killed along with his best friend, Odin, also three years old, in front of Hunter’s 12-year-old sister.

In these cases down the long line of years, the government offers regrets but insists mournfully that the government has a privilege to commit torts that lead to the burning, raping, or killing of our children, and therefore, sadly, the victims have no recourse, no redress.

Enough. We have a Constitution. It neither creates nor permits sovereign immunity. Neither the legislature nor the courts have authority to grant the government and its employees a privilege to commit torts. That authority is reserved to the People. This Court should no longer declare the law too weak to give recourse for parents of children killed by government negligence. It is past time to restore the Constitutional order.”

Challenging habits & assumptions

Lawyers are as prone to group-think as anyone else. We develop habits and assumptions based on how we've seen things done. Those habits and assumptions blind us. Repeatedly over my career, I've discovered valid arguments that had gone unnoticed for years, even decades, because they did not fit within conventional practices. I've gotten used to opposing lawyers complain that they've never heard this or that argument I'm making. I think I've found these arguments because of a life-long habit of trying to understand issues from the ground up — starting from first principles — and looking only to authoritative sources instead of assumptions or norms for each step in the reasoning. This excerpt is from a motion I filed in 2022. The motion addresses a Georgia statute that creates a heightened burden for the plaintiff in a medical malpractice case involving "emergency medical care." For over 15 years, Georgia lawyers had overlooked what I referred to in the motion as the "severity requirement" in the definition of "emergency medical care." Because of that, the heightened standard had been applied in many cases that it should not have applied to. The excerpt is less effective here, if you're not a Georgia medical malpractice lawyer. From the excerpt, you wouldn't know that my argument about the "severity requirement" was new. That's the point of writing it that way.

INTRODUCTION This is a medical malpractice case. The main acts of negligence occurred in an emergency room. Normally, medical malpractice cases involve a “regular” standard for negligence: Any deviation below the standard of care — large or small — makes the defendant liable for any harm caused by the deviation. But Georgia law creates a special “gross negligence” standard for a narrow subset of emergency department care. The law creates multiple requirements that must be met, in order for the jury to apply the gross-negligence standard, rather than the regular standard. The Defense obviously wants the jury to apply the gross-negligence standard, because that standard makes the case harder for a plaintiff, easier for a defendant. As the proponent of the gross-negligence standard, the Defense bears the burden of presenting evidence that the requirements are met, for applying that standard. The undisputed evidence, however, is that in this case the requirements are not met. So Plaintiff asks the Court to grant partial summary judgment, finding that requirements for applying the gross-negligence standard are not met, and ordering that the jury must apply the “regular” negligence standard. ——— Georgia law — at OCGA 51-1-29.5 — creates multiple requirements that must be met in order to give the defendant the benefit of the special “gross negligence” standard. The two main requirements before applying the gross-negligence standard are: (i) a location requirement, and (ii) a severity requirement. The location requirement is straightforward: As relevant here, the statute requires that the medical care at issue was provided in an emergency room. Plaintiff agrees that the location requirement is met in this case. But the statute also imposes a severity requirement, before giving the defendant the benefit of the gross-negligence standard. The severity requirement is not met in this case. As anyone who has been to an emergency department knows, the vast majority of “emergency” patients do not have highly time-sensitive emergencies. ED waiting rooms are filled with people waiting hours to see a physician. Georgia law does not give defendants the benefit of the gross-negligence standard for all those patients. Instead, OCGA 51-1-29.5 limits the gross-negligence standard only to the most extreme emergencies — those in which any delay of medical attention would likely cause serious harm: “Emergency medical care” means bona fide emergency services provided after the onset of a medical or traumatic condition manifesting itself by acute symptoms of sufficient severity, including severe pain, such that the absence of IMMEDIATE medical attention could reasonably be EXPECTED to result in placing the patient’s health in SERIOUS jeopardy, serious impairment to bodily functions, or serious dysfunction of any bodily organ or part. OCGA 51-1-29.5(a)(5). This statutory definition encompasses only the most extreme of emergencies — a gunshot wound to the chest; a femoral artery sliced open and the patient bleeding out; a patient choking and unable to breathe; etc. In situations like that, even a delay of 60 seconds is likely to cause serious harm. Such ultra-extreme emergencies represent only about 1% of all ED patients. Most ED patients can tolerate a delay of hours. And even patients with serious, time-sensitive emergencies — like a stroke — can usually tolerate a delay of at least a few minutes. Our Supreme Court recognizes, of course, that to apply the gross-negligence standard, the jury must find that the statutory requirements for applying the standard are met. In this case, the severity requirement is not met. Jennifer Barnett was not in the small class of patients who required immediate medical attention because any delay could be expected to cause serious harm. Furthermore, the undisputed evidence shows affirmatively that the severity requirement is not met here. With this motion, Plaintiff submits an affidavit by Dr. Martin Lutz, a veteran ED physician. He testifies that Jennifer Barnett could tolerate some delay of medical attention with no likelihood of serious risk for the delay. Jennifer was not in the small category of patients for whom any delay of medical attention, even a delay of a few minutes, was likely to cause serious harm. The Defense has no contrary evidence. Additionally, in email correspondence, the Defense has indicated they do not intend to present any such evidence (presumably because they cannot find a medical expert willing to give that testimony). Accordingly, there is no evidence on which the jury could find that the requirements are met, to apply the gross-negligence standard. So the jury cannot apply that standard. Plaintiff asks the Court to enter an order granting partial summary judgment on that issue.

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