Go to navigation Go to content

"Judge, this is a NO PAY case!" Attorney Says

It's a pretrial conference.

Your civil lawsuit has been in litigation for over two years now.

It doesn't matter whether your case involves a car accident, or medical malpractice or even wrongful death.

The judge calls the attorneys into court to talk settlement.

The lawyers have to wait two hours to see the judge.

The judge turns to me during this court conference and says "Counsellor, what is your demand to settle this case?"

I tell him "Two million dollars."

The judge makes a note of that figure on his papers and then immediately turns to the defense attorney and say, "Counsellor, what are you willing to pay on this case?"

The defense attorney says with a straight face "Judge, this is a NO PAY case."

What does that mean?

It means that the insurance company has reviewed and evaluated the case.

It means that the insurance company has weighed the risks of going to trial compared to trying to settle.

It means the insurance company feels the case can be defended.

It means that we're going to trial.

It means that we're going to take a verdict on this case.

It means that I now know where the defense stands from a settlement position.

They will not even enter into settlement negotiations and that's fine.

Up until this conference, the defense had never given me an indication about what their settlement posture was.

Were they willing to talk?

Did they think they had liability?

Did they think the case was defensible?

Now I know the answer to each of those questions.

I had this exact scenario a number of years ago in a case involving a failure to diagnose an ectopic pregnancy.

My client was pregnant but the pregnancy was not in the uterus where it's supposed to be. Instead, it was in her fallopian tube.

As the pregnancy grows, it can cause the tube to rupture and she can bleed to death.

My medical expert felt that we had a valid case.

During our pretrial conference, the defense uttered the same words as in the headline of this article...

"Judge, this is a NO PAY case."

When we were assigned to a trial judge to try this medical malpractice case, the judge tried to get settlement negotiations going before we made opening remarks.

The trial judge was treated to the same phrase..."Judge, this is a NO PAY case."

We started the trial and in the middle of the case, the judge again tried to jump start settlement negotiations.

He was met again with this phrase..."Judge, this is a NO PAY case."

Turns out, in that case, the defense was right. At least the jury thought so. The defense paid nothing and my client received nothing.

Turns out that we were not able to show that we were more likely right than wrong that what the doctors and the hospital staff did violated the basic standards of medical care resulting in her losing her fallopian tube.

To learn even more about negotiation strategy and NO PAY cases, I invite you to watch the video below...


Gerry Oginski
NY Medical Malpractice & Personal Injury Trial Lawyer