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The Judge is Furious! "What Do You Mean You're Not Ready For Trial Counselor? I TOLD YOU I WOULD NOT TOLERATE ANY MORE EXCUSES! Your Case is Dismissed!" Can Judge Do That?

The answer is YES, he can do that.
Let's look at how and why he might do that.

Let's say you sued your doctor.
For medical malpractice.
You claim that your doctor was careless and his carelessness caused you harm and injury.

Your doctor denies he did anything wrong.
He denies that whatever he did caused you harm.
He also claims that YOU are responsible for your own injuries.

To make matters even worse, he then argues that IF he did something wrong and IF his wrongdoing caused you harm, your injuries are not as bad as you claim them to be. "I'll see you at trial," he tells his lawyer to tell your lawyer.

Your case takes two years to get to trial.
In the weeks leading up to your trial date, the attorneys are required to appear in court for pre-trial conferences with the trial assignment judge. This is to see if there's any chance both sides are willing ot negotiate before being sent out to pick a jury and start your trial.

In many instances, pretrial settlement conferences are productive. 
The judge has a lot of discretion to pressure both sides to settle.
The judge can also direct the attorneys to return to court days, weeks or even months later with updates on their settlement positions.

At some point the judge will set a line in the sand.
"Counselors, if you're not willing to negotiate and put money on this case, jury selection will begin exactly four weeks from now," the Judge tells the attorneys. "There will be no excuses. There will be no adjournments. If you, the plaintiff's attorney are not ready on that day, I will dismiss your case. If you, the defense lawyer are not ready to proceed, I will strike your answer and you will proceed to a trial on damages only. DO I MAKE MYSELF CLEAR?" the judge demands to know.

Each lawyer acknowledge's the judge's directive.

I want to take a moment to explain the ramifications of what the judge said and what it means for each side.

The judge has total control over what happens to your case, from start to finish. He is responsible for legal rulings as well as procedural rulings. The judge has the discretion to throw out your case if your lawyer, the injured patient's lawyer, is not ready to proceed to trial. You see, the judge needs to keep moving these cases forward to a resolution.

From the judge's standpoint, it doesn't matter if a case settles or goes to jury verdict. Either way, it's another case off his calendar. If an attorney is hindering or delaying a case moving forward, there's only so much delay a judge will tolerate. He will likely reach a breaking point and issue an ultimatum to the attorneys. "Either you try this case or I will dismiss your case for failing to prosecute it."

If, on the appointed day for jury selection to start, your lawyer now comes into court and tells the judge he's not ready to proceed, the judge can dismiss your lawsuit. That would create big headaches for you and your lawyer. Your attorney might try to get the judge to reconsider. He might have to prepare written papers justifying why he coudn't proceed on the assigned date. He might have to appeal the ruling to the higher appellate court.

All of these efforts may get him nowhere. Then again, it might get your case restored back to the trial calendar through much effort, turmoil and angst, not knowing if he'd be successful. This is all BEFORE you even try your case!

If the defense lawyer comes into court on the day jury selection is supposed to start and tells the judge that he cannot proceed forward with the trial and is unwilling to settle the case, then the judge is within his right to strike the defense's answer. Now, what's an 'answer' and why does this matter?

I'll tell you why.

When you start your lawsuit, you do so by making specific allegations of negligence and wrongdoing on the part of the doctor or hospital staff. We then take those papers and deliver it to the people you are suing. The people you are suing are known as defendants. You, the person bringing the lawsuit is known as the plaintiff.

Once the people you are suing get a copy of your lawsuit allegations, they forward it on to their insurance company. The insurance company then hires attorneys to represent the doctors and hospital staff you've sued. The lawyers are now required to answer your allegations in a document titled an "ANSWER." Creative, isn't it?

Your lawyer, the plaintiff's attorney, prepares a complaint which is a listing of the allegations.
The defense lawyer prepares an answer to the complaint.
Your lawyer then tells the court that the issues are now joined and you're ready to proceed with the discovery process that will now take you two to three years to complete.

"Ok, so what does this have to do with 'striking the defense's answer'?" you ask.
Everything.

In the complaint you claim your doctor was careless.
The defense says "No I wasn't."
You claim your doctors' negligence caused you harm.
The defense says in his answer "Whatever we did, did NOT cause you harm."

The defense basically denies all your claims in their answer to the lawsuit allegations.

Let's jump ahead to the approaching trial date now.
The judge informs each lawyer that if they are not ready, they will suffer the consequences as described above.
These are not idle threats either.

Each attorney must proceed and assume the judge will do exactly as he says if they are not ready to proceed to trial.
If on the appointed day for trial the defense lawyer says "Judge, I cannot try this case today because of...blah, blah, blah," he must assume that the judge will strike his answer.

That means it's as if the defense has never answered the allegations to your lawsuit. That means you get an automatic win on the issue of who, if anyone, is legally responsible for your injuries. You get a default win. The defense never showed up! You win automatically. You can now proceed to a trial to determine how much money you are to receive for all the harms, losses and damages you incurred because of your careless doctor.

Imagine this scenario...

The Mets are playing the Yankees and for whatever reason the Mets just don't show up for the game. After a little while waiting around for the Mets to show up, the game is forfeited and the Yankees win by default. They never even took the field yet they won simply because the other team failed to show up. The same thing happens if the judge strikes the defense's answer.

You'd get that automatic win.

If your attorney is not ready to proceed and your case gets dismissed, your lawyer will have lost all leverage to negotiate and try to settle your case before trial. If the defense has their answer stricken, that may force the defense to go out, make a call to their insurance company to cough up money to settle. That may compel the defense to try and settle your case when they were not willing to do so before. This may also leave bad feelings between the attorneys and the insurance company that could come back to bite your lawyer in the butt on the next case he has with this lawyer and this insurance company.

A side benefit of the judge giving the lawyers a definitive trial date is that now the case MUST move forward. Either he sends the case out for jury selection or he dismisses the case or the case gets settled. No matter which path the case takes, it is now off the judge's plate. What happens after that is up to the attorneys and whether they're prepared to go forward.

To learn how a trial judge’s refusal to adjourn a medical malpractice trial in New York resulted in a great outcome for an injured patient, I invite you to click here. 


Gerry Oginski
NY Medical Malpractice & Personal Injury Trial Lawyer