Imagine that.
You sued your doctor for medical malpractice.
For causing you permanent harm.

Your doctor denies all your allegations.
Throughout your lawsuit, the defense refuses to accept responsibility for your injuries.
They refuse to acknowledge they did anything wrong.

"We'll see you at trial," they say.

Three years after you start your lawsuit, your case FINALLY comes up for trial.
Your attorney has spent months preparing for your trial.
He has spent hundreds of thousands of dollars prosecuting your case during these three years.

He has hired multiple medical experts.
He has prepared these experts to get them ready for trial.
He has prepared you for trial as well.

FINALLY! Your trial starts.
Here in New York.
In State court.

It's an emotional roller coaster for you.
There are times when you are on a high and everything is going your way.
There are other times when the defense attorney is cross examining one of your witnesses and it's going badly for your case.

It's nauseating.
You feel the tension in your gut.
You can cut it with a knife.

Every time your attorney puts a witness on the stand to testify, it feels as if the jury likes what they have to say.
Then, when the opposing lawyer gets up to cross examine that witness, something terrible comes out and the jury seems to be shaking their heads when they hear it.
You don't know what to believe anymore.

You thought your case was so clear cut.
You thought that your doctor was careless and caused you harm.
You thought that your medical expert confirmed all that.

That's why you were allowed to go forward with your lawsuit.
So how is it that you're now in the middle of your trial and it feels as if your case is falling apart?
I'll tell you how.

It's because you never know what will happen at trial.
You think you have the best case in the world and your expert falls apart on cross examination.
You may think you have the most credible witnesses and it turns out one of them has a dark secret that's just been revealed to the jury which destroys his credibility.

You think your money expert, known as an economist, comes from a great university.
Turns out he forged his resume and work history and now all his testimony on your case is thrown into question.
You thought you had a good case!

You do, but showing that you are slightly more likely right than wrong is not always straightforward.

So let's get back to the title of this article...

Can the judge force the attorneys to take a verdict instead of settle your case midway during your trial?
The answer should be NO.
But let's explore how this might happen.
Let's pick up in the middle of trial.

Your attorney realizes that your case is unraveling.
The defense attorney realizes that his witnesses are no better.
They agree now is the time to start negotiating.

The defense wants to limit their risk.
They are afraid that if the jury is asked to make a decision about whether the doctor violated the standard of care, they're going to say "YES." 
They're also worried that the jury is going to come back and say that his negligence was a cause of your injury.

Then, the jury will have to decide how much money to give you to compensate you for your injuries.
For your pain and the suffering you endured.
For your disability and the permanent problems you'll have into the future.

The only way the defense can minimize the risk that they'll get hit for a large verdict is to try and settle your case for an amount they consider to be appropriate and significantly less than they think a jury will come back with.

Your attorney on the other hand realizes he has risks too.
There's the chance a jury will decide your doctor was NOT careless.
In that case, you get NOTHING.

Even if the jury decides that your doctor violated the standard of good medical care, there is the chance they will find that his wrongdoing did NOT cause your injury.
In that case, you get NOTHING.

If however the jury does find that your doctor was negligent AND that his carelessness caused you harm, there is the possibility that the jury will give you very little to compensate you for all the harms, losses and damages you suffered.
Your attorney realizes that it's time to start negotiating toward a settlement.

During a break in the middle of your trial, both attorneys start to negotiate.
After a little while, a substantial settlement offer is made.
Your attorney tells you it's a great offer, all things considered.

Your lawyer tells you that your case is going down the drain.
If you don't accept this offer, you'll likely get nothing or very little.
You agree with his assessment.

You give your lawyer authority to settle your case and end this fiasco.
Your lawyer speaks to the defense attorney and tells him we agree to the settlement offer.
Now, both lawyers ask to speak to the judge to let him know they've settled your case.

The attorneys are brought into the judge's private chambers.
This is his private office within the court house.
"Yes? What is it?" the judge asks with curiosity.

"Judge, we just want to let you know during this break in testimony, we've agreed to settle this case," your attorney proudly tells the judge.
"We'd like to put the plaintiff, the injured patient, on the witness stand to ask her some questions so we can put this settlement on the record," your attorney continues.

The judge frowns.
Then he gets angry.

"Wait a want me to agree to this settlement? We've now spent two entire weeks on trial. You spent three days picking a jury consisting of six men and women from the community to give up their lives and their jobs so they can do their job and evaluate your case. You told them they had a job to do. To decide whether you, representing the injured patient, was slightly more likely right than wrong. You made us sit and listen to testimony, experts and look at evidence. You put us through the highs and lows of direct examination and cross examination," the judge is saying at a volume that's only getting louder.

"You took up two weeks of MY time, you've use the courts' resources trying this case, taking up my law secretary's time and my court officer's time, and now you're coming in here telling me you want to settle this case NOW???" the judge screams. 

"There's no chance I'm letting either of you settle this case now. You've piqued my interest in what happened. I WANT TO KNOW HOW THIS TURNS OUT! I want to see what the jury will do. I want you to finish this case. You're both going to continue this trial and take a verdict!" the judge yells. "I want the jury to see this through. I want to give them the satisfaction of having done their civic duty and taken time away from their jobs and families," the judge continues as he's excoriates both lawyers.

Your lawyer and the defense lawyer look at each other with their mouths hanging open.
They've never seen this before.
They want to settle your case.

They've AGREED to settle your case.
Without the NEED to have the jury decide who is more likely right.
But the Judge is NOT allowing that to happen.

The attorneys whisper to each other...
"Can he do that?" they ask each other.
Well, can he?

Technically, the answer should be no.
The judge cannot force the attorneys to proceed to verdict.
The judge cannot compel a litigant to proceed with their case.

HOWEVER, if the litigant is REFUSING to go forward with their case (for whatever reason), the Judge has the ability to punish or sanction that person.

"You don't want to proceed forward?" the Judge asks.
"Judge, we've agreed to settle this case. We just want to put the settlement on the record," your lawyer says.
"That's not going to happen. I'm dismissing your case now. How do you like that counselor?" the Judge says in an antagonizing voice.

The Judge can threaten to dismiss the defense's answer for failing to go forward with the trial.
In that instance, you will get an automatic win on liability and causation.
The only question for the jury will be how much money to give you.

What are the attorneys to do in this scenario?
IF this were to happen, here's what both attorneys would HAVE TO DO...
They would have to make the Judge aware that both sides are willing to settle.

They'd have to put all this 'on the record'.
The Judge can't force a litigant to continue their case if they've reached an agreement, or at least shouldn't be able to force an attorney to proceed if a settlement has been agreed upon.

Putting all this on the record would ensure that whatever happened after, they could show an appellate court what the Judge did. Anyone reading the record would see that the lawyers wanted to settle and the trial Judge refused to go along with the settlement and instead forced the lawyers to go to verdict.

They could refuse to go along with the Judge's order to continue the trial and separately agree to settle the case regardless of what the Judge does with the case. There are a number of options that the attorneys could choose in this wacky scenario.

To learn more about whether a Judge could do this, I invite you to watch the quick video below...

Gerry Oginski
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NY Medical Malpractice & Personal Injury Trial Lawyer