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Juries, Justice and Having Fun

Last week, I tried a medical malpractice case to a jury. We got a verdict for over a million dollars. I was quite happy with the outcome, as was the client. There were a couple of things that were noteworthy about this case: First, it was the first jury trial I had done in over three years. Second, it was the first plaintiff’s malpractice case I had ever done.

For 30 years I was a medical malpractice defense lawyer here in Virginia. I went to trial in a lot of these cases, well over 100. There are few malpractice lawyers who can say that, by the way. I didn’t win them all – no lawyer who actually tries cases can make that claim (although some have been known to do so) – but I had huge experience. Even though there was a gap of over three years, I felt entirely comfortable going to trial last week. I suppose it is a bit like riding a bicycle. You don’t really forget. It comes back to you almost instantly.

The last defense case I tried was in the spring of 2016. I won that one too. I can recall driving home thinking it might well have been the last jury trial of my career. At the time, it seemed like a natural step in my career. I had been focusing on FTCA malpractice cases and there are no juries in those cases. Back then, my firm still did a fair amount of defense work meaning I could not take state law malpractice cases. The insurance companies that control that business wouldn’t stand for it. Hence, no more jury trials for me unless I did defense cases which I really had no interest in doing. But a little over a year later that changed. The lawyers doing our defense work were gone and we were out of the defense business. No more insurance companies so I was free to take regular malpractice cases. Jury trials were back in the mix.

We started looking at cases, but we wanted to be very picky about what we took. With our well established nationwide FTCA and vaccine practices we could afford to take such an approach. We also put out the word that we’d be happy to look at referrals and/or co-counsel arrangements. A lawyer I have known and respected for over 30 years, Jay Tronfeld, asked me to help out on a couple of pending cases. I was happy to do so and that is how I ended up in front of a jury last week and I was really happy to be there again.

When I was a young lawyer, I defended a surgeon in a malpractice case in Southside Virginia. The anesthesiologist was also in the case and he was represented by an older lawyer, Harry Thompson. Harry was a character, a WWII bomber pilot and a classic Virginia gentleman. He was a natural trial lawyer, one of the best I have ever seen. The trial was a hard one. The plaintiff’s lawyer was tough and he had beat up on the doctors pretty hard – and they were taking it pretty hard, understandably. On the second or third day of trial, the doctors, Harry and I were all out to lunch. The doctors were not exactly cheery – not surprising. About mid-way through lunch, Harry looked across at me and exclaimed: “Brewster, can you believe we get paid for having this much fun?” Frankly, I thought the doctors were going to throw up right there, but Harry nailed it. We were having fun – and we won that trial.

Harry died a few years ago, but I often think of him and the pleasure he took trying cases. Jury trials are not easy. The preparation is hard work. But at the same time, they are thrilling – a complete rush. There is nothing else I have ever done that is so all consuming. In the courtroom I feel totally alive. Last week reminded me of that reality. The jury did the right thing. Its decision was plainly correct and, yes, I had fun.



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