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Defense Lawyer Experience Makes One Appreciate Plaintiffs’ Risks

As a plaintiffs’ lawyer, I am sometimes accused of being too conservative or risk averse. Thirty years of being a medical malpractice defense lawyer has something to do with that. Let me share some examples from when the shoe was on the other foot:

  • Feuding defendants ensures a plaintiff’s verdict. Wrong. I once tried a case where my argument was that the plaintiff deserved money – from the other defendant. The co-defendant made the same argument as to my client. The jury returned a defense verdict as to all defendants. Plaintiff got nothing.

  • With no defense experts, a plaintiff win is guaranteed. Wrong. In a death case, I could find no expert to support any defense for my client. The doctor refused to consent to settlement – even after I told him (using expletives) that he was an idiot not to do so. (He was.) I tried the case on the theory that I didn’t “need” any experts. Jury bought it – defense verdict. Plaintiff got nothing.

  • A big defense offer means that the defense is not seriously contesting liability. Wrong. An orthopedic surgeon client performed what might charitably be described as experimental surgery. It didn’t turn out well as the patient ended up with impaired bowel, bladder and sexual function. We offered a good chunk of the applicable cap. It was not enough. After a mistrial and a nonsuit – and huge costs for plaintiff’s counsel – the third trial resulted in a defense verdict. Plaintiff got nothing.

With such experiences and others in mind, I frequently counsel clients and co-counsel about the risks of not settling a case when a reasonable offer has been made – even if it is a disappointing one. It’s what I call the “think long and hard before saying no” talk.

One of the things I often tell clients is that I would have no problem gambling with my fee. We have lots of cases and if one case doesn’t turn out well, we’ll survive. The client, however, has only case. If that is a loss, then there is nothing. When an offer has been made that would net real money for a plaintiff, then that “gambling” element takes on more significant risks.

My approach has opened me to the attack that I am “afraid” to try a case – just got that the other day, when I was explaining that a seemingly “unlosable” case could, in fact, be lost. Perhaps I am being a bit egotistical, but the accusation of me being hesitant to try cases is ridiculous. I am quite certain there is no other Virginia malpractice lawyer who has tried more jury trials than I have all over the state.

As a defense lawyer, I lost cases I shouldn’t have lost, but I probably won more cases that I should have lost – and those plaintiffs, many of them deserving, got nothing. In the latter category, what was often an element was a plaintiffs’ lawyer who didn’t appreciate the risk of that particular case. I try hard not to do that in my cases.

Our job as trial lawyers is to try to get our clients the best outcome we can. It shouldn’t be about our egos or greed – and, if it is, then something is very wrong.

Am I conservative? Absolutely, and I am not the least bit embarrassed either. I have seen too many plaintiffs walk away empty-handed – and I don’t want that to happen to my clients.

My time on the other side taught me many valuable lessons.


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