You might think I wrote that incorrectly.
I asked whether a defense lawyer will ever tell a jury how much money you should receive in a malpractice case.
Before I answer that question, you need to come back with me for a moment.
Back to when someone is injured.
Let's say your doctor was careless.
His carelessness caused you injury.
Your injury is permanent.
Since your doctor will not voluntarily pay you money as a form of compensation, the only way you can obtain compensation is to bring a lawsuit against him and the corporation he works for.
In order to be successful in a medical malpractice case, we must show that you are more likely right than wrong that what you are claiming is true.
We need to show:
- That your doctor violated the basic standards of medical care,
- That his carelessness was a cause of your injury and
- That your injuries are significant or permanent.
All of those things must be confirmed by a doctor who has either treated you or reviewed all of your records.
In New York, when we have confirmation that you have a valid case, we then prepare the papers necessary to start your lawsuit.
If this were a car accident case or trip and fall case or a dog bite case, we would be required to put down a particular amount of money that we believe you are entitled to receive.
Medical malpractice cases in the state of New York are different.
In the papers that start your case, known as a summons and complaint, we are actually prohibited from putting down an amount of money that we believe you are entitled to receive.
That means that when we deliver those lawsuit papers to the doctor and the Corporation he works for, they don't actually know how much we are requesting in your lawsuit.
The doctor takes your lawsuit papers and forwards them to his insurance company.
The insurance company then sends your lawsuit papers to defense lawyers they have on retainer.
The defense attorneys now answer your lawsuit allegations in a document called 'an answer'.
Then, the defense attorneys send us a request for various documents and medical records.
They will also ask us specifically how much you are requesting in your case.
They want to know what is the 'ad damnum' in your lawsuit.
That's a fancy legal term that basically says "How much are you guys asking for in this lawsuit?"
At this point, we are required to put a number down that we believe properly represents full and fair compensation.
The reality is that number is fictional.
There is often no rational relation between that number and the actual value of your injuries.
Remember when you read the newspaper and you learned that someone in an accident case was suing for $100 million?
Well, that number bears no relationship to the injuries that person actually suffered and what they are worth.
One of the key reasons why attorneys tend to overinflate that number has to do with legal rulings that go back many years.
That rule basically says that if a jury determines you are entitled to receive $200 million, and you only asked for $100 million at the beginning of your case, then the most you can ever recover is $100 million.
In more practical terms, if an attorney were to put down that he feels you are entitled to $1 million and the jury decided you were entitled to receive $10 million, the maximum you could recover would be $1 million.
So now you're stuck.
You only asked for $1 million, yet the jury decided you should receive $10 million.
Is that fair?
Should you have known at the beginning of your case that your injuries were worth more?
Sometimes, you won't know the true extent of your injuries at the beginning of your case.
If that happens, there are some formal requests we can make to the judge to try and change the original amount of money we asked for.
We'd have to ask the judge to amend our original number to a larger amount to reflect the realities of the jury verdict and my clients injuries.
Legally, we ask the judge to amend our ad damnum clause, after the fact.
After the jury has reached their verdict.
After the jury has spoken.
This is very dangerous.
The answer to whether you will receive a larger amount than you actually asked for now rests with the trial judge.
He can agree with you and change the original amount.
He could disagree with you.
If he disagrees with you, you'll have no choice to but appeal that issue.
The appellate court could agree with you.
On the other hand, they could easitly disagree with you.
At this point, you are at the mercy of the trial judge and the appellate court.
That's not a good position to be in.
Especially, when all of this nonsense could have been avoided.
Want to know how?
By overinflating the amount that an attorney believes you are entitled to receive.
That means that if I put down you are entitled to $25 million at the beginning of your case and a jury decides you're entitled to $1 million, there's no problem. If instead, I had only put down that you were entitled to $100,000 and the jury decided you were entitled to $1 million, then we've got a big problem.
Okay, now you know the background.
Let's talk about the question I raised in the title of this article...
At the end of the trial, during closing arguments the defense attorney makes closing remarks first.
Then, after he is finished, I will address the jury and make my closing arguments.
In civil lawsuits involving accident matters, medical malpractice matters and wrongful death matters, the attorney who represents the injured victim makes closing arguments last.
We get the last word.
Actually, we don't.
The judge gets the last word.
The judge instructs the jury on the law after closing arguments are done.
However, when it comes to attorneys and closing arguments, we always get the last word.
When preparing for closing arguments, the defense lawyer knows that most experienced trial attorneys who represent an injured patient will ask the jury for a specific amount of money.
There are some instances where an attorney strategically chooses not to give the jury a number.
In that instance, the attorney may ask the jury to come up with their own value.
However, that can be very risky.
If this strategy is used, you will likely find the attorney comparing and contrasting various amounts of money earned by celebrities, sports figures and businessmen.
Then they will argue that your injuries are worth far more than what those people earned.
You will find that the best trial attorneys in New York who represent injured patients will often tell the jury an amount of money that they feel their clients are entitled to receive for the different damages they are claiming.
That presents the defense lawyer with a choice.
You see, the defense attorney will always argue that his client, the doctor whom you sued, did nothing wrong.
If his strategy at trial has been to argue that they did nothing wrong and the doctor's treatment did not cause your injury, why then would he ever talk to a jury about giving you money?
The harsh reality is that he wouldn't.
The defense attorney hopes and expects that the jury will never get to evaluate how much to give you, because he feels confident the jury will decide in his favor.
That's one school of thought.
Another school of thought says let's argue alternative theories.
What that means is that the defense attorney is going to first argue that his client did nothing wrong.
But sensing the possibility he will lose that point, he may decide he has to address damages in the unlikely event the jury gets to that point.
In order for the jury to reach their verdict, they will be asked to answer a series of questions.
The first question deals with liability.
The second question deals with causation.
The third question leads to damages.
Liability simply refers to who is responsible.
Causation deals with the sequence of events that led the injured patient here today.
Put another way, was the doctor's wrongdoing a cause of the patient's injury?
Damages represent all of the harms, losses and injuries the patient suffered.
Let's talk for a moment about the actual questions that the jury will need to answer for their verdict...
Specifically, the first question often asks “Was Dr. Jones negligent in treating this patient?”
If the answer is yes, the jury then must answer the next question.
If the answer is no, the case is over.
Let's assume the jury decided that this doctor was negligent.
Negligence in this case refers to medical carelessness.
Now the jury must determine whether your doctor's carelessness was a cause of your injury.
If the answer is yes, then they are required to compensate you for all of your harms, losses and injuries.
If the jury determines that your doctor's carelessness was not a cause of your injury, then the case is over and you get nothing.
Once the jury has determined that you are entitled to compensation, they must answer each question about each element of damages.
Examples of damages include pain and suffering from the time of the wrongdoing until the time of trial.
Legally, that is known as past pain and suffering.
Another element of damages is the pain and suffering you can be expected to have from the time of the trial into the future.
Your doctors will have already testified about your life expectancy and what problems you can be expected to encounter over the course of your lifetime.
The jury will also be asked to evaluate whether there are any financial losses such as lost earnings, loss of a pension, lost employment opportunity among other damages.
Legally, we call that economic losses.
Those are things that can be calculated.
Damages concerning someone's suffering and the pain they endured is called non-economic damages.
There are some savvy experienced defense lawyers who believe it is their obligation to talk to the jury about money.
They believe that even if the jury never gets to that point, they still should talk about it.
They know that the patient's attorney will talk about it.
Since they have the first chance to talk to the jury about it, why not bring it up instead of sticking their head in the sand and pretending it's not there?
The defense attorney must tread gently here so as not to push the jury into believing that you are entitled to receive money simply because they're talking about it.
He will argue that the doctor did nothing wrong.
He will also argue that even if the doctor did something wrong, then you are also responsible for contributing to your injuries.
You should know that this is an attempt to brush off the doctor's responsibility onto you.
The attorney will then argue that the amount you are claiming is way too much.
In fact, a smart defense attorney will argue that “You will hear the plaintiff's attorney tell you shortly that the value of her injuries are believed to be in the millions of dollars. I say nonsense. If you reach this question you should know her injuries are worth no more than $50,000. In that instance, we would acknowledge and recognize the doctor's responsibility is worth only $50,000 and no more.
This strategy is used with some frequency by defense attorneys.
Naturally, the amount that a lawyer will argue is appropriate will vary from case to case.
When the attorney tells the jury an amount of money that he believes you should receive if they ever reach that point, he has now set the bar for what he believes you should receive as the maximum amount.
When the defense attorney has suggested an amount of money he feels you should get, I have to address the low value that the defense attorney has just talked about.
I now have to explain to the jury why such a number is inappropriate and why your damages are significant and worth so much more.
The reality is that this particular defense strategy can work if done correctly.