We wanted to settle.
So did the defense.
It was a decent medical malpractice case.

We had Ok liability.
That meant we had an expert willing to testify that the offending doctor violated the basic standards of medical care. But it was not clear-cut. These were shades of grey. One doctor says he wouldn't have done it that way. Another said he would have. That's not great. Ideally, we want a case where a doctor says there's no doubt that what this doctor did was improper and never should have been done.

We had Ok proximate cause.

That means our expert was willing to testify that the offending doctor's wrongdoing was a cause of the patient's injury.
When I say we had 'Ok proximate cause' it means that it wasn't great but it wasn't horrible either.
It was just Ok.

That was the second weak link in our case.
I didn't think a jury would connect the doctor's wrongdoing to the patient's injury.
My expert made it sound convincing, but I wasn't convinced.

Every time I ran the facts by one of my colleagues, I got the same response.
"Where's the causation?" they'd ask.
I had to agree.

Yet my expert kept telling me that we had the connection.

You should know that in a medical malpractice case in New York, we're required to show, with a medical expert that (1) there was wrongdoing, (2) the carelessness was a cause of your injury and (3) your injury is significant and/or permanent. If we can show that, it means we have made out a 'prima facie case'. That's a fancy Latin term meaning that we've established the three elements needed to get your case in front of the jury.

It will then be up to the jury to decide if we are more likely right than wrong.

This was not a strong case by any means for us.
I knew the defense also had problems.
It wasn't a clear cut case for the defense either.

I knew they were defending this case till the end to save face.
They told me all along that they'd never settle this case.
They argued for two years that their doctor did nothing wrong.

I knew this defense lawyer.
He worked for a good law firm in New York City.
I'd worked with him on other cases before.

I respected him and his opinion.
He was a good trial lawyer.
A straight shooter.

I could sense his reluctance to try this case.
I could sense he really would have preferred to negotiate and not rely on an unknown jury coming to a decision.
I had the same exact feeling.

He never actually came right out and said this, but during our conversations in court, I could tell.
It's a gestalt you get when talking to your opponent about your case.
You see if he and his client are receptive to negotiating.

"Listen Gerry, I think you have a stronger case on liability than I do, but I have a better chance on getting your case dismissed on proximate cause," the defense lawyer said during a settlement conference in court. "The insurance company has this case as 'defensible' and 'no pay'. Looks like we're going to try this case to a verdict," he said.

This was bravado. Putting on a good face. Bluffing.
I knew their medical expert wasn't on solid ground.
My opponenent knew that I knew it.

"Listen, I understand your point, but I think once a jury finds your doctor was careless, it's simply a matter of connecting the dots to see that there's a clear connection between his negligence and my client's injuries. Once that happens, the damages are significant and an appellate court could easily decide this case has a value of more than one million dollars.

Again, more bravado talk.
More posturing.
The defense lawyer knows this case isn't worth one million dollars.

I know the case isn't worth a million dollars.
This case has a value of $350,000-$500,000, assuming we had good liability and good causation.
He knew it and so did I.

I had made a $1 million dollar demand to settle.
I knew this was not a realistic number.
The defense lawyer also knew this was an unrealistic number.

As we got closer to trial, I got the sense that something had changed.
I couldn't put my finger on it exactly, but it was just a sense.
It felt as if the defense lawyer wanted to try and settle but couldn't.

"Hey Gerry, listen, you've got problems with your case and my doctor refuses to settle. My hands are tied even if I did want to try and settle," the defense lawyer says to me one day in the court hallway. That's not a resounding "We'll never settle," and it's not "Let's negotiate now" comment either. It's conflicting. His tone also reflected ambiguity.

I also knew that there was some issue with the defense because he hadn't yet notified me which medical expert he was bringing in to testify at trial. You see, in New York, we're required to notify our opponent that we're bringing in certain experts. We have an obligation to share with the defense our experts' credentials. We have to identify where he went to school, where he did his internship and residency, where he's licensed to practice medicine and if he has any affiliations with hospitals.

We do not identify our experts by name. Instead, the defense takes the information we provide and plugs it into a computer program. That program then identifies exactly who we're bringing in to court. Then, once we know WHO is coming in to testify, we try and dig up dirt on that expert. Both sides do the exact same thing.

Well, we were getting very close to trial and the defense still hadn't notified me about which experts they were bringing in to court. That suggested either he was having trouble getting a medical expert to tesitify or he didn't have time to get this done earlier or this was a delaying tactic to make me do last-minute research before trial.

Jury selection was starting today.
The trial assignment judge had asked each of us whether we were ready to try the case.
"Yes, your Honor," we both replied.
"Good. Now go pick a jury," the judge said.

We spent the next few hours removing jurors who were not right for this case.
It should be called jury 'deselection' rather than jury 'selection' since we don't actually pick the jurors we want. Instead, we have to remove those we DON'T want.

By mid-afternoon, we had six members of the community who said they could be fair and impartial. In addition, we also picked three alternate jurors who would take the place of any of the first six should they become ill or unable to complete their jury service.

After we reported back to the jury clerk that we had finished jury selection, we were told to report to the judge who would be trying this case. He was assigned to us randomly among those judges who had experience trying malpractice cases. I had heard about this guy. Not great things. I'd heard he wasn't helpful to attorneys representing injured patients. I'd heard he came from the defense side where he represented doctors and hospitals. I'd also heard he wasn't helpful to either side when it came to try and help attorneys negotiate a case.

I'd never encountered a judge to took that position.
I prejudged him thinking that since he came from the defense, he'd automatically favor the defense arguments.
I anticipated making lots of objections, thinking his rulings would favor the defense.

My adversary and I went up to the judge's private chambers for a chat.
This is customary.
The judge was just assigned our case.

He doesn't know anything about it.
He doesn't know the facts.
He doesn't know the allegations.

He doesn't know the medicine.
He doesn't know what we know.
We've been living with this case for almost three years now.

The judge is getting the case for trial without knowing anything.
It's time to fill him in.
"So, what's this case about?" the judge asks as we sit down in front of him.

He's not expecting a 30 minute recitation about each and every detail.
Instead, he's expecting a one minute summary of why we're here and why we believe the case has significant value.
Same for the defense.

Once he gets an idea of what the case is about, he asks for copies of the pleadings.
Pleadings are the legal documents that details the allegations against the doctor.
He wants to see what you're legally claiming.

He also wants to see what the doctor is arguing as a defense.
"Judge, this case isn't timely," is one defense.
"Judge, the patient is reponsible for her own injuries," is another.
"Judge, the claims here don't rise to the level of actually being a case and should be thrown out," is yet another.

Once he reviewed that, he said "Ok, we're starting trial at 9:30 a.m. on the dot tomorrow morning. DISMISSED!"
"But wait Judge...don't you want to try and negotiate this case? Possibly see if we can resolve it without the need to proceed to trial?" we both asked almost simultaneously.

The judge's response shocked me.
I think it stunned the defense lawyer too.
"Counselors, you're here to try your case. That's what we're going to do. I am the trial judge assigned to try your case. I am not the pre-trial settlement judge. I am not the judge assigned to negotiate with you. You're both experienced trial lawyers. It's not your first case and not your first trial. You gentlemen had almost three years to try and negotiate as this case wound its' way through the court system. Well, here you are. Your decisions and those of your principals have led you here. You're both adult-enough to negotiate on your own. You don't need me to mediate and negotiate for either of you. Now, this conversation is over and make sure to have your witnesses tomorrow ready to go immediately after your opening remarks," the judge instructed.

My adversary and I walked out of the judge's private chambers surprised.
Apparently he'd never had a trial judge refuse to negotiate or attempt to negotiate either.
I could sense he wanted to negotiate but needed an intermediary.

I would also have liked to negotiate but couldn't get past the defense lawyer's facade and bravado.
In a last ditch effort on the way out of court I said "Any chance we can resolve this now before starting trial tomorrow?"
"My hands are tied. Even if I wanted to do something, the carrier won't budge and without the judge putting pressure on the carrier, I don't believe they'll move off their position.

So we tried our case.
One week of trial.
Many witnesses.

Multiple experts on both sides.
In court every day.
No attempt by the trial judge to ask if negotiation was possible.

No attempt by the trial judge to see if settling this case was a better option than having a jury decide.

So we let the jury decide.
And they did.
In our favor.

The jury found that yes, the doctor had violated the standards of good care.
They also found that yes, the doctor's wrongdoing was a cause of my client's injuries.
But they didn't give her the amount of money we thought her injuries were worth.

They gave her less.
Much less.
In fact, after the trial, the defense lawyer confided in me that he had valued the case at around the exact amount that the jury had given my client. He had reported that to the insurance company early in the case. If there were negotiations, this is the amount he likely would have offered to settle the case before trial.

Had the judge tried to negotiate, he likely could have gotten the defense to offer money and my client would have had the opportunity to evaluate that offer and decide whether to take it or risk going to trial. As there was never an offer, we had no choice but to let the jury decide.

To learn about a lawyer who refused to negotiate directly with us and preferred to have an impartial negotiator try to negotiate, I invite you to watch the quick video below...

Gerry Oginski
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NY Medical Malpractice & Personal Injury Trial Lawyer
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