Go to navigation Go to content

You Reject Defendant's Offer to Settle. Jury Comes Back with LESS Money. Can You Now Go Back to the Defense Attorney Asking for Their Original Offer?

You sued your doctor.

For medical malpractice.

Here in New York.

 

You claimed your doctor was careless.

You claimed his carelessness caused your injury.

You claimed your injuries are permanent.

 

Your doctor denied doing anything wrong.

Your doctor denied that anything he did caused you injury.

Your doctor claimed that if he did something wrong and caused you harm, you also caused your own injury.

Then, your doctor claimed that even if he did something wrong and caused you harm, your injury isn’t as bad as you claim.

 

Your doctor refuses to negotiate.

He refuses to settle.

He says “I’ll see you at trial.”

 

Two years of hard-fought litigation go by.

They fight you on everything.

Every little piece of evidence.

Every fact is disputed.

 

Your case finally comes up for trial.

Just before you begin jury selection, the defense makes a settlement offer out of the blue.

Your lawyer tells you that they realize there are risks of going to trial even though they refused to negotiate at any time before now.

 

You are incensed.

You are outraged.

You are furious.

 

The defense’s offer is insignificant.

You believe your injuries are worth far more than what’s being offered.

You immediately reject the defense offer.

 

Your lawyer asks if you want to counteroffer.

“Not a chance,” you exclaim.

“If they are serious about settling this case, they need to show me a good faith effort that they’re serious.

 

Turns out, the defense refuses to make any other offer.

They were looking to you to engage in good-faith negotiations.

Since you failed to counteroffer, they withdrew their offer.

 

You don’t care.

You know in your heart of hearts that your case is worth much more.

You know that when your case goes to the jury, they will realize it’s worth much more.

 

You proceed forward with trial.

Two weeks of witnesses.

Two weeks of an emotional roller coaster.

 

At the end of your case, you know that the jury believes you.

You know that the jury feels as you do.

You just know it.

 

You can FEEL it.

You feel like the jury bonded with you.

You feel like the jury didn’t like your doctor.

 

You can tell that the jury agreed with your medical expert.

They were nodding along when your expert criticized the care your doctor provided.

You could just see it on their faces.

 

The defense attorney now makes closing arguments.

The jury is scowling.

Your lawyer then gets his turn to make closing arguments.

 

You feel good.

You feel like you’re winning.

You feel like you’re going to win.

 

You’re confident.

The judge now gives the jury legal instructions they must follow.

The judge explains the questions that the jury must answer to reach their verdict.

 

The first question has to do with liability.

“Was the defendant doctor negligent?” is the first question.

The judge explains that they have to determine if your doctor violated the basic standards of good medical care.

 

If no, your case is over and you get nothing.

If yes, the jury must go on to the next question.

“Was the defendants’ negligence a proximate cause of your injury?”

 

This second question concerns the connection between your doctors’ carelessness and your injury. It’s the link or bridge between the two. If there’s no link, then your case is over and you get nothing.

 

If there is a direct connection, then the jury must answer ‘yes’ and go on to the next series of questions regarding how much money you are to receive for the different element of damages you’re claiming.

 

As you listen to the judge describe each question, you’re answering it ‘yes’ in your own mind.

You know the jury will do the same.

You are confident that’s what will happen.

 

After an hour, the judge has finally finished with jury instructions.

The jury is told to begin their deliberations.

The waiting begins.

 

Hours later the jury comes back with a verdict.

You are anxious.

You are thrilled.

You know you won.

 

You just know it.

You just have to hear it.

You have to hear it from the jury.

 

The judge brings the jury into the courtroom.

Both attorneys are there.

A crowd has gathered in the back of the courtroom to hear the verdict.

 

The jury foreman stands and announces “As to the first question…Was the defendant negligent? the answer is “YES.”

 

You can hear a collective gasp in the courtroom.

You just knew it.

Now you’re waiting for the answer to the second question.

 

“As to the second question…Was the defendants’ negligence a proximate cause of your injury? the answer is “YES.”

 

Another collective gasp comes from the defense table.

You’re on a roll now.

You’ve got momentum.

 

You know you won your case.

The next question is simply “How much?”

How much will the jury give you as full and fair compensation for all the harms, losses and damages you incurred because of your doctors’ carelessness?

 

As the jury foreman recites the amount, you’re shocked.

You’re devastated.

You’re upset.

The amount is so low it’s ridiculous.

 

The jury just sent you a message.

It’s not a pretty message either.

They clearly thought your doctor did wrong.

They clearly thought your doctor was careless and caused you harm.

 

But they clearly thought your injuries were not worth very much.

And that’s a shame.

While the judge is thanking the jury for their jury service, you’re still trying to process how the jury could have done this to you.

 

You want to walk up to the jurors and scream out “WHAT THE HELL IS WRONG WITH YOU?”

“Didn’t you hear about my injuries?”
“Have you no common sense?”

“Were you asleep when our experts came to testify about my permanent injuries?”

“WHAT’S WRONG WITH YOU??”

 

Your lawyer tells you to settle down.

He tells you that an outburst like that will get you nowhere.

He says he’s going to talk to the jury.

That is, if the jurors want to talk to him.

They don’t have to.

They can burst out of the court house and go home.

On the other hand, they could stick around and ask the lawyers some questions.

 

Some will stick around.

Some will not.

Fifteen minutes later, your attorney returns with a scowl on his face.

“Well? What did they say?” you ask him bursting with curiosity.

 

“They didn’t believe you were as badly injured as you claimed,” he said simply.

“They didn’t really think your injuries were permanent even though we brought in your treating doctors to testify,” he tells you.

 

You quickly realize that your only option is to appeal.

But that will be expensive.

That will add another one to two years without any resolution of your case.

There’s lots of uncertainty with an appeal, just like with a jury verdict.

 

You come up with another idea quickly.

“Listen, I want you reach out to the defense lawyer and tell him I’m now willing to accept their settlement offer that he made before we started the trial,” you say, trying to convince him this is a reasonable course of action.

 

Your lawyer scowls further.

“That’s not going to happen,” he says.

“There’s no incentive for them to offer you a dime now. There’s no leverage or threat of getting a bigger verdict than what they’re offering with this strategy. They’ll know that your only option is an appeal and since the jury gave you so little money, they will consider it a massive win. For all I know, they just may say ‘here’s your check for this small amount, have a nice day’.”

 

You won’t take no for an answer.

You persist while the attorneys are packing up their bags.

Your lawyer relents and walks over dejectedly to the defense lawyer.

He extends his hand and says “Nice job you did there counselor. Listen, before you go, I’d like to ask you a question…”

 

The defense lawyer, riding high on the jury verdict, picks his head up as if to say, “Go ahead, what’s your question?”

 

“You got lucky here. You know my clients’ injuries are worth much more than the jury gave her. Otherwise you’d never have made the offer that you did prior to trial. My client will likely appeal and I believe there are good grounds to overturn the verdict on damages. My suspicion is that the appeals court will either increase the verdict dramatically based on the medical experts and treating doctors who testified or send us back for a new trial on damages alone.

 

I want to know if you’d consider offering your original settlement amount before we started trial in an effort to avoid an appeal,” your attorney says as confidently as possible.

 

You’re watching this interaction from fifteen feet away.

You’re looking to see what type of reaction the defense lawyer has to this proposal.

You see it as soon as your lawyer finishes with his offer.

 

“You must be kidding!” the defense lawyer says with an earned smile.

“You want me to pay your client what he could have gotten without going to trial, after we’ve just been through a pain in the ass two week long trial? Ha! Keep dreaming. Now, having said that, I will still relay your offer to my principals at the insurance company to see if they’d be interested in your offer. My guess and my recommendation to them will be absolutely not. There’s no reason to give your client a dime more than what the jury decided he’s entitled to receive,” he says as he glances over in your direction.

 

The lawyer finishes packing his bag and says flippantly to your lawyer “See you around counselor.”

 

That’s when your lawyer comes back to you.
You know the answer.

You saw the look.

“Not a chance,” your lawyer says.

“It was a good try though,” he tells you.

 

“Looks like your only option is an appeal,” he says.

 

To learn more about jury verdicts in in NY, I invite you to watch the video below...

 


Gerry Oginski
NY Medical Malpractice & Personal Injury Trial Lawyer