It was the best of times. It was the worst of times. Please forgive my Dickens appropriation – I couldn't help it. The first week of March, I tried a Federal Tort Claims Act (FTCA) case in Georgia. We lost that bench trial. It was the worst of times. The second week of March, I handled a jury trial in Richmond, Virginia which resulted in a $6,500,000 verdict. It was the best of times.
How I came to try two cases back-to-back is a story for another time. I thought I was done with that sort of thing when I stopped being a defense lawyer when I did things like trying three jury trials in four weeks. Anyway, I am glad that at my age I still have the stamina and wits to do this, albeit with some very able help from my colleagues.
We didn’t really have much choice but try both cases. In the FTCA matter, the government made a take it or leave it offer a couple of months before trial. However, my client would have netted less than $15,000 from such a resolution. With a permanent partial hearing loss in a young woman, there was not much incentive for her to take the offer. Despite a catastrophic outcome for the client in the Richmond case and over $2,300,000 in undisputed medical expenses, the insurance company never made any effort to settle the case.
Although almost all of these points are ones that have been learned (and sometimes re-learned) over time, there are several lessons and/or reminders from my recent arduous period:
Trials have inherent risks. Our FTCA case was a decent one with solid experts. While we thought our odds of prevailing were good, the outcome reminds us that whatever happens in any particular case is 100%. Like juries, when judges are the triers of fact, they have minds of their own. They can – and often will – come to conclusions that neither side may have contemplated. Even in the best of cases, there is risk of an unexpected outcome. I have often told clients there is a 10% “crazy factor” to almost any trial of any sort. No matter how good you are at assessing cases – and I think I am quite good – one can never forget that element of uncertainty about any trial.
Trials often have surprises. In theory, modern discovery eliminates “trial by ambush” and this is largely true. But not completely true. Cases never play out completely as expected. In both of my recent trials, there were twists and turns which we had not anticipated. This has probably been true in every case I have ever tried – and that number is not small, well over 100 medical malpractice cases alone. Of course, surprises can cut both ways – and that was the case in both recent trials. Regardless, no matter how well the case has been developed, in any trial there will still be ample opportunities for lawyers to think on their feet. Lawyers always have to be ready to go off-script.
Witness preparation is key. This is stating the obvious. Still, even when witnesses have been very well prepared, sometimes things will come out of their mouths that surprise you. It’s extraordinarily unsettling to hear something for the first time when a witness is on the stand, but even the best and most careful lawyers have had that happen. Perversely, however, it is exactly at such moments that thorough preparation can save the day because you understand (hopefully) where the witness is actually coming from.
Lawyers must understand the medicine. Again, this is stating the obvious, but the facts of a medical malpractice case are medical facts. Any trial lawyer must have an absolute grasp on the facts of his or her case. It can be a daunting task because the medicine is often very complicated – and, after all, most of us are not doctors. Having said that, experience tells us that most cases come down to a few key medical issues, sometimes only one. If you cannot learn and understand those issues, you need to do something else for a living. Without a thorough understanding of the pertinent medical questions and related records, you don’t really know your own case, which is never a good thing. Effectively cross-examining opposing experts is almost impossible.
Bad facts must be addressed head on. Ignoring them will not make them go away and will often magnify their negative impact. Much of this comes back to basic preparation, but it goes without saying that you have to be able to deal with the totality of the evidence – not just the elements that support your case.
Cross examination matters, a lot. When I was a defense lawyer, my view was that the best way to win a case was to destroy the plaintiff’s experts. Usually, over two thirds of my pre-trial effort went to preparing to cross examine the other side’s experts. That was a good rule to follow. Now being on the other side, cross examination of defense experts is important, but in a different way. Effectively attacking defense experts can confirm the validity of the plaintiff’s case. I would also add that (apropos of the third point above) preparing experts to be cross examined is key.
Trials should be civil and businesslike. Jurors and judges don’t like to see lawyers being ugly with each other. While the process is, of course, an adversarial one, there is almost never any need for it to be a nasty one. The other side has a client to represent, just like I do. Even if the other side misbehaves, it is best to stay on the high road. It usually pays off in the end.
Never over-promise or under-deliver. A lawyer’s credibility with a judge or jury is critical. Fudging facts or not delivering promised evidence can impair – sometimes fatally - an otherwise good case. It may sound corny, but the lawyer has to be a “truth giver.” Being anything less will hurt your case and your client.
I could probably add a dozen more items to this list and still not come close to covering everything. One of the best aspects of being a trial lawyer is that it is a constant learning process. Sometimes those lessons are learned the hard way, but either way one’s experience and judgment should always be growing.
It may sound peculiar considering the stress involved and having lost one of these recent trials, but I still love doing this. Many years ago, I more or less stumbled into being a medical malpractice trial lawyer. I was never a science student. As a defense lawyer, I often joked that if doctors saw my paucity of science courses – and the grades I got in the ones I had – they would ask for another lawyer. There were no doctors or nurses in my family. Still, becoming a medical malpractice lawyer was the best thing that ever happened to me professionally. It’s very hard at times – especially when you have to share a loss with a deserving client – but the emotional rewards can be huge too. I hope I can keep doing this for many years to come.