That big verdict you just read about in the newspaper is (almost) meaningless.
The $20 million dollars that the jury gave to a tragically injured victim is a hollow victory.
Newspapers love when jury's return enormously large verdicts.
TV news stations love reporting huge verdicts for injured victims.
It sells advertising.
It sells newspapers.
The reality is that those large verdicts rarely, if ever, are paid in full.
The reality is that an injured person with a large verdict rarely, if ever, takes home the full amount of money a jury decided they should receive.
Let me tell you why...
At the end of a hard-fought trial involving medical malpractice, the jury must decide whether the injured victim has shown that she is more likely right than wrong that what she is claiming is true.
Legally, that's known as the preponderance of evidence, which by the way happens to be our burden of proof.
If the jury determines that the doctor was careless and that carelessness was a cause of her injuries, then the jury must decide how much money to give to her as compensation for her injuries.
The jury must determine how much the injured victim will get for each segment of damages she is claiming.
Those damages must be fully supported by the evidence.
If there was pain and suffering from the time of the malpractice until the time of trial, the jury will have heard testimony from qualified medical experts.
Likewise, the jury will hear testimony about what will happen to her into the future.
Her treating doctors will likely come in and testify that based on the extent of her injury, it can be expected her disabilities will continue on for the next 20 years.
There are two distinct types of damages the jury must look at...
The first is economic damages.
The second is noneconomic damages.
Economic damages fall into the category a being able to quantify exactly what amount of money the injured victim lost because of the doctors' carelessness.
Economic losses include lost earnings and lost fringe benefits.
Lost business opportunities.
Lost health insurance and vacation time.
Household services that had to be replaced because she could not do these things on her own.
Noneconomic damages are those things such as pain and suffering that are not readily quantifiable.
The jury is told that if they reach the damages questions, they are not to consider the sum of all her damages. Instead, they are to consider each element of damages separately.
If you would add up all the separate elements of damages, that number may in fact come to a very significant and substantial amount.
The reason is that each element of damages stands on its own.
If the jury were to simply come up with some collective number on how much to compensate the injured victim, there would be many jurors who would immediately be turned off by such large numbers.
Let me walk you through the process of what happens when the jury returns a very substantial verdict.
This will give you an insight into why the majority of injured victims who receive a very substantial jury verdict never take home the amount that the jury decides you should receive.
The jury must answer a series of questions known as interrogatories or jury questions.
Those questions have decision trees.
In other words, one question leads to one of two other questions.
Question #1: "Was Dr. Jones, negligent?"
If the answer is yes, then go on to question #2 .
If the answer is no, then you are to go no further and advise the court.
Question #2: "Was Dr. Jones' carelessness a cause of the patient's injuries?
If the answer is yes, then go on to the damages section of this verdict sheet.
If the answer is no, then go no further and report back to the court.
Once the jury reaches a conclusion that there was carelessness and the doctor's carelessness caused injury, then they are required to compensate the injured victim.
You should know that there are no specific guidelines that the jury is given to decide how much a particular injury is worth.
The judge does not give the jury a listing of injuries and their corresponding values for them to evaluate.
Instead, the jury must decide collectively, based on the testimony and their own experience what each individual element of damages is worth.
After the jury has decided how much the injured victim will receive for each element of damages she is claiming, they will now report back to the court that they have completed their duties.
The jury foreperson will then read the verdict.
In a case where a jury returns of verdict of $20 million dollars, the first thing that happens after the verdict is read is that the defense attorney will stand up and object to the verdict.
He will ask the judge to set aside the verdict as being against the weight of the evidence.
In law, there is a Latin phrase that is used.
It's called "Judgment non-obstante verdicto."
The judge has an opportunity to either immediately agree or disagree with the defense lawyer's request to dismiss the verdict as being against the weight of the evidence.
In most cases, the judge will defer to the jury and let the verdict stand, at least for now.
As an alternative, he will tell the defense lawyer that he can submit written papers to the judge together with legal caselaw and a copy of the transcript to identify and explain in detail why he believes the verdict is not supported by the evidence.
The judge will then give the plaintiff's attorney, the injured victim's attorney, time to reply to the defense lawyer's request to drop this verdict.
Legally, this is known as post trial motions.
Once each side has had an opportunity to submit papers in support of each of their positions, the judge will then have approximately 2 months in which to render a decision.
This gives the judge an opportunity to conduct extensive legal research and read the detailed papers.
It gives the judge an opportunity to see whether the defense lawyer really does have a valid argument.
The trial judge has the ability to throw out the jury verdict.
He also has the ability to let the verdict stand.
If the judge decides that the jury verdict was appropriate, the next step is that the defense lawyer will file an appeal to the Appellate Division here in New York.
The Appellate Division is the next level court above the trial level court.
In the Appellate Court, they do not hear the trial over again.
Instead, the legal issues are reviewed to see if there are any significant mistakes that were made at the trial level.
If the appellate court decides that there were substantial legal mistakes made that influenced and changed the likely outcome of your verdict, they have the ability to alter the trial verdict in various ways.
The appellate court could simply agree with a jury verdict and let the verdict stand.
The appellate court to decide that the verdict is not supported by the evidence and throw the verdict out.
The appellate court could decide that since errors of law were made during the trial, that the litigants require a new trial all over again!
Another alternative is that the appellate court to decide that the verdict in favor of the injured victim was appropriate.
They could decide the amount of damages was too high.
They could reduce the verdict.
They could instead recommend an arbitrary alternative number they feel would be appropriate based on other similar cases.
Another alternative is that the appellate court could decide that the verdict is too low and increase the verdict to a higher amount.
You should know that when a litigant appeals a the trial verdict, it can take approximately 1-2 years for the case to come up before the court hears oral argument.
Then it could take approximately 6 months in which to get a final decision from the appellate court.
While waiting for all this to take place, the appellate court encourages the feuding litigants to come together for settlement conferences.
These are attempts to try and settle the case before spending additional time, money and resources in taking the appeal to its conclusion.
The lawyers on both sides may recognize that a$20 million verdict is not sustainable when compared to other similar cases.
Maybe, the maximum value for this injury in this venue is only $5 million.
In that instance, the attorney representing the injured patient might recognize that his chances for winning an appeal would be slim.
That could mean that they would need a new trial all over again. That means additional time, energy and resources spent to retry the case.
Likewise, the defense recognizes that they too would be spending a considerable amount of money to retry the case without any guarantee that the next jury would reach with a smaller verdict.
In fact, there is a distinct possibility the jury could come back with an even larger verdict the second time around.
The attorneys must evaluate the risk of going forward compared to the risk of a guaranteed settlement, assuming of course, both sides were willing to negotiate.
Let me share a story with you that will illustrate exactly the point I am making here...
It was a medical malpractice case.
In Westchester County. (A very conservative county)
We claimed that the doctor violated the basic standards of medical care causing my client injury.
It was a surgery case.
We claimed the doctor failed to perform the surgery correctly.
We had a highly qualified medical expert who supported our claim.
The defense refused to talk to us for years.
They refused to negotiate.
They claimed their doctor did nothing wrong.
The doctor claimed he treated the patient appropriately.
He claimed the 'injury' she suffered is a known risk of the procedure.
He claimed that her injury wasn't really as bad as she was claiming.
Based on my legal research, I knew going into trial that this case had a limited value.
I knew that similar cases had settled in the high five figure to low six figure range.
That meant anywhere from $50,000 to $150,000 was the range we saw for similar cases in this county.
There was a distinct possibility that even if a jury were to find in favor of my client, the jury in this conservative county would give her less than $50,000.
That was a risk.
However, the decision to go to trial was not made by us.
Instead, it was made for us by the doctor and his insurance company.
You see, the doctor had a provision in his malpractice insurance policy that he controlled whether his insurance company would negotiate.
If he didn't agree, then the insurance company and his attorney could not enter into any settlement negotiations.
Well, in this case, the doctor did not want to settle.
He didn't think my client was entitled to a dime.
He felt he did nothing wrong.
That meant we were going to trial.
That meant we were going to have a jury decide whether we were more likely right than wrong.
That meant a jury would decide if my client was to get money as a form of compensating her for her injuries.
When I met the doctor's trial lawyer for the first time, it was to pick a jury on this case.
While waiting for the jurors to be brought into our windowless jury selection room, I had a very honest and straightforward discussion with my adversary.
I told him I needed $125,000 to settle this case.
I told him this case had a greater value.
I told him the jury would recognize she was entitled to more than what we were looking for to settle this case.
To his credit, the attorney actually agreed with me.
He said he'd done the same exact research as I did.
His research revealed that this case did have a value of approximately $125,000, especially in this county.
He would love nothing more than to settle this case.
Except there was one big problem...
The doctor, refused to settle.
Not even for a penny.
That meant, he couldn't negotiate.
That meant he had no money to offer.
That meant a jury would have to decide.
That meant we picked a jury.
That meant we had opening arguments.
We had experts.
We had our clients testify.
We had direct examination.
We had cross examination.
We had drama.
We had a judge who yelled at each of us at one point or another.
We had some boring testimony.
We had surveillance video.
We had anatomical models.
We had exhibits and x-rays.
We had family testify.
We had treating doctors testify.
We had objections.
Objections that were sustained.
Objections that were overruled.
We had evidence.
Lots and lots of evidence.
We had subpoenas and private investigators.
We had jurors who came late to court.
We had a judge who didn't always start court on time or end on time.
We had closing arguments.
We had a conference with the judge to learn what law the judge would be explaining to the jury.
We had jury questions, known as jury interrogatories.
We had jury deliberations.
And yes, we had a jury verdict.
After more than two years of hard-fought litigation, we finally had a verdict.
"Was the doctor negligent?"
This question asks the jury to decide if the doctor is legally responsible.
In other words, did the doctor violate the basic standards of medical care?
Legally, this is known as the liability question.
"Was the doctor's negligence a proximate cause of this woman's injuries?"
This question is legally known as the causation question.
The jury had to determine if the doctor's carelessness was a cause, not the cause of her injuries.
There can be more than one cause of someone's injuries and we need not show each and every injury was caused by the doctor's carelessness. We need only show one.
The jury then went on to answer each and every damages question about how much money this injured patient was to receive.
The jury determined that my client and her husband were legally entitled to receive $1.55 million dollars as full and fair compensation for this doctor's carelessness.
The verdict was a record setting verdict for this type of injury case in that county.
My client was esctatic.
She was thrilled.
She was in shock when the reality of what just happened set in.
She had tears in her eyes.
She was right all along.
We were right.
Our medical expert was right.
The doctor was wrong.
The doctor was wrong all along.
Now, he'd have to pay.
Not out of his pocket of course, but through his insurance company.
Or would he?
Would he accept this jury verdict without another fight?
Would he direct the insurance company to simply take out their checkbook and write us a check for $1.55 million dollars?
Not a chance.
Instead, the first thing that happened is that my adversary immediately jumped up and objected to the verdict.
He asked the trial judge to set aside the verdict.
He claimed the verdict was not supported by the evidence.
The judge immediately denied his request and advised him that he could submit formal written motion papers along with case law and the transcript and she would then reconsider her decision.
The judge gave him a specific amount of time to get this done.
The judge then gave me a limited time in which to reply.
After our post-trial motion papers were submitted, we waited almost two months before learning that the judge again denied the defense lawyer's request to throw out this verdict.
I knew what was coming next.
I knew the defense lawyer would file a 'notice to appeal'.
That's a notice letting me know that they have every intention to appeal the verdict and the judge's legal decision made after the trial was over.
About a month later I received notice from the court requesting each of the attorneys appear for a pre-appeal conference.
This conference is a chance for an administrative judge to sniff out the possibility whether this case can be settled before going through the full appeals process.
In our case, after the jury rendered their verdict, the doctor no longer had control of what the insurance company could or could not do.
That meant the insurance company now had the ability to enter into settlement negotiations if they felt is was in their best interests to do so.
That conference was helpful.
I learned that the defense actually was interested in negotiating.
My opponent had done significant legal research, as did I.
We did legal research to determine whether this verdict would be upheld on appeal.
We did legal research to determine what similar cases had achieved that appellate courts had let stand.
The defense attorney had also gone through the trial record to identify what legal errors might have been made by the trial judge.
He actually came to the same conclusion I did.
The chances he had to overturn the verdict because of any specific legal error made during trial was very slim.
That's why instead, he had to focus on the size of the jury verdict.
He knew that the appellate court would, in all likelihood, not agree to keep such a significant verdict for this type of injury.
In my heart of hearts, I knew he was right.
My legal research confirmed this.
That meant this verdict was at risk.
That meant we were at risk of losing this substantial verdict if the appeal went all the way forward.
That meant there was a substantial risk the appellate court would reduce the verdict to some arbitrary number or direct us to have a new trial from scratch.
That meant my client and I had to have a long chat.
A chat about the risks going forward.
A chat about the risk of a new trial.
We had to talk about the risk of a reduced verdict or a verdict that might be thrown out.
In the end, we agreed to negotiate.
I had an idea of the true value of this case now.
After the verdict, the value of her case had mushroomed.
It was no longer worth $125,000.
It was worth 6 or 7 times that amount now.
I called my adversary.
We began to negotiate.
I told him I needed $725,000 to settle this case now.
He promised to call me back.
When he returned my call, he told me he had the $725,000 and her case settled.
Let's review the timeline of what happened here...
Here we had a jury verdict of $1.55 million dollars.
The case could have been settled for $125,000 prior to jury selection.
Because the doctor refused, the jury decided.
The trial judge agreed with the jury verdict.
Before getting an appellate court to decide what would happen, the litigants agreed to manage their risk with a negotiated settlement.
That's what I meant when I said earlier that an injured victim who is given a large jury verdict doesn't walk away with that amount.
Why then don't the newspapers and TV news shows plaster the reduced amount of money in their headlines?
Because a reduced settlement or reduced verdict is not newsworthy anymore.
It is no longer sensational to report that an injured patient walked away with only a fraction of the amount a jury decided she should receive.