Posts Tagged ‘litigation’

Litigating for the Sake of Litigating: A Temptation to Be Resisted

Tuesday, July 5th, 2011

It really grinds my gears when attorneys start litigating for the sake of litigating without context or purpose. That’s right; I bet if you are a litigator, you know exactly what I am referring to.  I am litigator, and I am absolutely convinced that we would all be better lawyers and happier individuals if we just learned how to do our job with dignity and professionalism, while avoiding absurd tactics and unnecessary drama.

Maybe I am alone on this one (and part of me really wishes that I am), but I just don’t understand why some lawyers think it is beneficial to have one gear and one gear only during the litigation process –  to object and obstruct no matter what. Is it really necessary, for example, to resist any and all discovery requests by dreaming up objections that have no merit?  In the end, is impeding the flow of information during discovery really in the client’s best interest, and frankly, is it consistent with our ethical obligations as professionals?  It is my humble impression that this kind of obstructive behavior happens more than one might expect. So, we end up writing unnecessary motions and nasty letters and emails, we go to depositions to argue some more with the opposing attorney instead of focusing on the witness, and we create so much “bad blood” that the case becomes one about lawyers and not their clients. Is this consistent with our professional obligations? I certainly think not.

Isn’t it in the client’s best interest to share as much information as possible about the merits of the case so that the opposing party can make informed decisions about settling the case early instead of dragging the parties through litigation for years? Why would a plaintiff’s lawyer not want a defendant to know the nature of his claims, the extent of his damages, and the identity and subject matter of his experts’ testimony?  Sharing this type of information is exactly the reason why a Plaintiff is in litigation in the first place.

Similarly, doesn’t it help a defense lawyer to be a straight shooter early on in the discovery process so that the plaintiff will not go on to note 100 depositions and use every discovery tool just to make sure that defense counsel isn’t hiding something? If the defense to a case is weak, isn’t better for all parties to be on the same page (yes, even when a corporate defendant is not in the mood to hear bad news) so that a case that must be settled can be settled early without making defendant incur unnecessary defense costs? Pardon my cynicism, but since I am on my soapbox, let me say this as well: the interest in having billing time should never be a substitute for the client’s best interest.  One byproduct of being evasive in discovery is that the defendant client (especially a corporate client) might end up being misinformed about the merits of the case – not a good position to be in when the lawyer finally comes to his/her senses and recommends settlement, but the client is not on the same page.

We have got to stop taking positions that have no good faith basis.  If there is no evidence of contributory negligence, don’t claim contributory negligence.  If experts are retained to testify at trial before the expert designation deadline, don’t object to their disclosure during written discovery simply because the expert designation is not due for another three months. If you can’t resist speaking objections, there are better places than a deposition to hear yourself talk.  If you have to file a motion, file one because you have to, not because you got a new crop of summer associates or first year associates doing nothing but writing motions for the sake of writing motions. I can go on, and I am sure that, if you’re a litigator, you can contribute to this list.

Life is too short and our occupations too stressful to engage in the meaningless waste of spirit. Time spent on useless litigation could be time spend with our families. What do you think? Don’t be shy, hop on the soapbox….

Related Posts:

Why early settlement is a win-win for all

Mediation of Lawsuits: The Top 5 Things that Tick Me Off!

 

 

 

Don’t underestimate jurors. They really do get it – most of the time!

Tuesday, June 21st, 2011

I just finished a two week trial that was probably one of the most complex medical cases of my 37 year career. Since the “resolution” of the case is the subject of a confidentiality agreement, I’m not at liberty to discuss the details of the case or its “resolution.” Nevertheless, what I am free to tell you is that having tried hundreds of jury trials over my career, it amazes me just how often jurors “get it” when it comes to doing their very best to understand the evidence thrown at them and to do “the right thing.”

The case involved about 8,000 pages of medical records. Jurors heard from 8 medical witnesses ranging from surgery, to infectious disease, to radiology to pathology. This was not a case involving “Anatomy 101″; it was an advanced course in the biomechanics of the spine, neural element compression, biofilms on hardware, pulmonary hypertension, deep vein thrombosis – well, you get the picture.

After nine grueling, long days of evidence, sitting in hard, non-cushioned chairs and having to endure seemingly endless bench conferences dealing with evidentiary issues and objections that the jury was not allowed to follow, our panel patiently waited for over two hours on their final day of service while the parties to the lawsuit worked out “a resolution” of the case. The trial was to end the next day (today). They, the jurors, would finally get to speak to us, rather than having us speak to them for over two weeks.

Once the details of the “resolution” were hammered out, the judge had the courtroom clerk bring the jury into the courtroom to take their “luxurious” wooden seats. The Court announced that the parties had “resolved” the case and that the jurors’ service was now completed. Nine plus days and countless hours of sitting and listening – and now – no chance to deliberate and tell the parties who they – the jurors - thought was right in this legal battle. The judge then advised them that they had served a most important function because many times (this being one of them) the parties could not reach agreement – uh “resolution” – without them. It was further announced by the Court that if they cared to do so, they were now free to speak with the lawyers.

Rather than gather up their belongings and hustle out the door, each and every one of them remained in the courtroom to share their thoughts and observations of the trial. Once again, as has happened so many times in my career, I was pleasantly surprised  and amazed by what they had to say. Peppered with questions by the lawyers to see if they “got it,” our jurors shared their observations about key issues in the case. The told us about their “take” on the evidence involving T1 versus T2 weighted MRI’s. They accurately recounted the evidence regarding the issues of “sub-clinical infection.” They shared their individual thoughts and reflections on what role the decedent’s underlying, complicated co-morbidities played in their analysis of causation.

We’re not talking about a panel of medical experts here. We’re talking about everyday folks, who brought their common sense and varying levels of education and life-experiences to the litigation table. They “got it”!

None of the parties will ever know what the jury’s eventual verdict would have been. Nevertheless, because of the uncertainty of that verdict, the opposing sides in this lawsuit worked their way through a morass of emotion, righteousness, principles – you name it – to get the case “resolved.”

I hear so often from “professionals” that the jury system is broken. They rant endlessly that we need “professional” finders of fact to arrive at just results. Oh really! If that’s the case, then why is it that each side can have highly qualified experts, who can’t agree on the interpretation of medical evidence? Maybe – just maybe – it takes people of plain common sense, goodwill and a sense of justice to get it right.

Have jurors arrived at verdicts in my career that make you want to retire from the practice of law? They have – but on very rare occasions. When you put aside the self-righteousness of bias and advocacy and reflect on verdicts, many lawyers – I for one – appreciate that juries really do “get it” and really try to do “the right thing.”

To all the cynics out there, don’t be so unwilling to appreciate what these citizens do to advance our system of justice. Is the system perfect? Far from it, but not as far from it as many would have you believe.

Let me end by simply saying – THANKS to our citizens who made-up our jury. Your patience, attentiveness, endurance and willingness to serve is very much appreciated. You could easily have dreamed-up a way to avoid service on the jury during the selection (voir dire) process (as so many do in so many pathetic ways), but you didn’t do that. Kudos to each and every one of you. You did advance the cause of justice. You made the parties to this lawsuit take note of the fact that maybe, just maybe, their view of the case was about to be tested in the crucible of the jury room. That knowledge and the reality of an impending verdict made them step back, take a deep breath and come to a “resolution” of their dispute. Well done, Citizens! I for one applaud you.

Week in Review (April 16 – 20, 2011) The Eye Opener Health, Law and Medicine Blog

Saturday, May 21st, 2011

From the Editor (Brian Nash)

Another week of great posts (IMHO) by our blawgers. Apparently, I’m not the only one who thinks so since we have now surpassed 21,000 page views in the last 30 days. The number keeps rising. Our sincere gratitude to all our readers!

Our topics were once again quite varied. They spanned the law, health, science and medicine. We even had a piece on a local event – Marathon Kids. This piece is part of our new program to promote charities and civic organizations in our own backyard – Baltimore and Washington.

We try week in and week out to find topics of interest for you, our readers. If you ever have any suggestions for topics of interest to you, please leave a comment or send us an email or fill-out the contact form with your thoughts and suggestions. We’d love to hear from you.

Let’s get to it then. What did we cover this past week that you might be interested in reading? Take a look -

Why early settlement is a win-win for all

By: Michael Sanders

There is an old adage in the law that cases settle on the courthouse steps. There is a reason for that. When the parties are actually walking into court to try their case, they seem to suddenly recognize that there are significant risks to going to trial, and that there is serious money at stake. When you go to trial, only one side can win. The other side goes home a loser. Faced with such a stark outcome, both sides tend to become more reasonable in their assessment of their case and more willing to talk settlement. After all, despite all the years of experience that trial attorneys amass, no one can ever predict what a jury is going to do in any specific case. As one mediator I know likes to tell the litigants, going to court is like going to Vegas:  you roll the dice and you take your chances. Read more….

Milk from Mom: Effective in preventing common infant complication (NEC)

By: Jason Penn

The debate among parents regarding the use of human milk vs. formula wages on, but according to a recent study, you can chalk one up for the human body.  That study, headed by the Johns Hopkins University in Baltimore, concluded that premature babies fed human donor milk were less likely to develop the intestinal condition necrotizing enterocolitis (NEC).  Both sides has its advocates, willing to do battle at any time. When it comes to NEC, Mom’s milk has the decided advantage. Read more….

H.I.V. treatment advances, but what are the implications of terminating research early?

By: Sarah Keogh

Last week, I read some exciting news about H.I.V. treatment and transmission. A New York Times article reported that a large clinical trial found that “[p]eople infected with the virus that causes AIDS are far less likely to infect their sexual partners if they are put on treatment immediately instead of waiting until their immune systems begin to deteriorate…” The study found that “[p]atients with H.I.V. were 96 percent less likely to pass on the infection if they were taking antiretroviral drugs…” These findings are overwhelmingly positive and the implication for public health is huge. Read more….

A Windy, Rainy but Fabulous Day in Baltimore: Marathon Kids Final Mile Celebration

By: Rachel Leyko

Despite the wind and rain, this past Saturday I volunteered at the Marathon Kids Final Mile Celebration Event at Western Polytechnic High School in Northwest Baltimore.  I learned of the event through the Junior League of Baltimore and to be honest, prior to Saturday, I did not know much about the organization, its purpose or effect on the children it sought to serve.  However, after Saturday’s event, not only was I impressed with the purpose of Marathon Kids, but I saw firsthand the positive effect this program has had on the children who have participated. Read more….

Acquired Brain Injuries: Causes and Impact

By: Theresa Neumann

On the heels of Jason Penn’s blogregarding calling “911″ for signs of a possible stroke, I decided to introduce a variety of acquired brain injuries for further discussion in future blogs since damage to the brain results in some of the most catastrophic injuries possibly sustained by the human body with significant “collateral damage” for all of the friends and family involved in the individual’s life. Read more….


Sneak Peak of the Week Ahead

Some topics we’ll be covering next week…and then some…

  • You or someone you know has been diagnosed with cancer, now you have to deal with the horror. Jon Stefanuca will be writing a piece based on our experiences with a number of clients “living with cancer.”
  • Mike Sanders and I have both recently resolved cases involving families who have lost a child. Mike’s involved the death of a fetus very near term. He’ll share that story and the experience of the case with you.
  • Maybe those of you who have children with special needs are familiar with the local (Maryland and Washington, D.C.) resources to help you and your child. For those who may not be or just want to learn more, Jason Penn will be providing information on this next week.
  • You may have heard the recent news about labeling of certain medications for children. Sarah Keogh will report on this and also delve into some practical problems and issues that parents face every day in terms of medicating their children.
  • We’re going to begin a new series on exactly what is recoverable in our jurisdictions (Washington, D.C and Maryland) under what is known as the Survival Act and the Wrongful Death Act. We’ll be paying particular attention to issues involving what’s known as pecuniary benefits, loss wages and diminished earning capacity. Should be educational. We hope you enjoy it.

Have a great weekend, Everyone!

Why early settlement is a win-win for all

Friday, May 20th, 2011

There is an old adage in the law that cases settle on the courthouse steps. There is a reason for that. When the parties are actually walking into court to try their case, they seem to suddenly recognize that there are significant risks to going to trial, and that there is serious money at stake. When you go to trial, only one side can win. The other side goes home a loser. Faced with such a stark outcome, both sides tend to become more reasonable in their assessment of their case and more willing to talk settlement. After all, despite all the years of experience that trial attorneys amass, no one can ever predict what a jury is going to do in any specific case. As one mediator I know likes to tell the litigants, going to court is like going to Vegas:  you roll the dice and you take your chances. So often times, the closer a case gets to the trial date the more motivated the two sides are to talk settlement. But is there a better way?

A couple of recent cases made me start to think about settlements and how they come about. (If you missed it, Brian Nash wrote an excellent piece on the frustrations of mediation and trying to settle cases). I’ve recently handled two cases that illustrate how settlements work and how two cases can go down dramatically different routes to ultimately get to the same place. Both of these cases are subject to confidentiality agreements so I can’t divulge the names of the parties or the settlement amounts, but they were both seven-figure cases with significant injury.

In the first case, the patient alleged that her doctor failed to timely diagnose stomach cancer over a period of several years. By the time the patient was properly evaluated by another physician, the cancer had progressed to the point that there was virtually no chance of a cure, and the young woman was likely going to die in the next few years. In the second case, the patient alleged that he suffered serious neurological complications (motor and nerve dysfunction in his arms and legs) as a result of post-operative complications that were not treated quickly enough. In both cases, a lawsuit was filed in court.  At that point, the two cases diverged.

Case Example #1 – Getting it done early

In the cancer case, before any depositions had taken place, the defense attorney called and asked if we might be able to talk about resolving the case. That’s always a great call to get as a plaintiff’s lawyer because it means there is a good chance that you will be able to get a nice result for your client, which is always the ultimate goal. Within a matter of weeks, we had reached an agreeable number and the case was over.

Case Example #2 – Grinding it out to the courthouse steps

In the second case, there was no early talk of resolution. The case proceeded through the normal course of litigation, which in the District of Columbia usually means about eighteen months of discovery, depositions, expert meetings, etc. Twenty-five experts were hired to review records and testify. Twenty-seven depositions ended up being taken. The case got all the way up to the Thursday before trial was scheduled to start on the following Monday morning. At that point, the parties finally reached agreement on a number and the case was settled.

Why the difference in approach?

So we have two cases, both with significant injury and both with questionable care. One case settled right away, and one dragged on for almost two years before settling. Is there a simple reason why? Not that I’ve been able to figure out. After years of doing this, I, like every other attorney, get a gut feeling as to what cases are worth, which ones will likely settle, which ones will go to trial. But it’s still a gut feeling; there’s no science involved.

It’s usually a combination of factors – the quality of the medical care, the severity of the injury, the likeability of the plaintiff and the defendant (more important than most people realize), the specific jurisdiction you’re in, etc. On top of these factors you have a myriad of psychological reactions that pop-up in lawsuits and there is no predicting those. Sometimes people get entrenched in fighting for no other reason than to fight. Some people get a number in their head for what a case is worth and don’t want to budge. So even though I can’t sit here and explain why certain cases settle early and some settle late, I do want to talk about the value of early settlements to all sides.

Common Sense and good economics say “get it done early”

It is easy to see why early resolution of cases benefits everyone, and it comes down to the costs of litigation. In today’s world, it can easily cost $75,000 to $100,000 (if not more in many instances) just in expenses to take a case to trial; it can easily be much higher in complex cases. (I know of one attorney who spent $300,000 on a case that he took to trial; he lost the case). These expenses consist primarily of expert fees paid to doctors to review records and testify. Expert doctors routinely charge at least $400 per hour and oftentimes more for their time. For trial testimony, doctors usually charge around $5,000 per day (some substantially more). If it runs into two days, that’s $10,000 just for one witness. It’s not unusual to spend tens of thousands of dollars for expert fees alone.

On top of that there is the cost of court reporters for each deposition, copying charges, obtaining medical records, long-distance calls, travel expenses, etc. Going through litigation is an expensive undertaking, and the longer the case goes on the more expensive it is. On the plaintiff side, all of those expenses are usually advanced by the attorney (in jurisdictions where this is permitted), but they all get paid back by the client at the end of the case (assuming the plaintiff wins; if there is no recovery, the plaintiff’s attorney “eats” those costs). So every dollar spent on litigation comes straight out of the client’s portion of the recovery.

On the defense side, insurers and self-insured institutions (like hospitals) have those same expenses, but on top of that, they also have to pay legal fees to their attorneys. Defense attorneys charge by the hour for everything they do on a file from reviewing records to meeting with clients to talking to experts to taking depositions. The complexity of medical negligence cases means long hours of work on each file, generating substantial legal fees. Those fees get paid to the defense lawyer whether the case is won, lost or settled at the last minute. The longer the litigation lasts, the higher the legal fees.

Of course it always costs money to investigate a case. There is no avoiding that.  Records need to be obtained and reviewed. Experts need to be retained for an initial opinion. But instead of spending $75,000 or $100,000 (or more) on a case, it may cost only several thousand dollars to work-up a case to get it ready to file – that is, to be in a position where early resolution can be discussed with the defendant. If a case can be settled early on, all of those thousands of dollars that would have gone to litigation costs go straight to the client. That is a huge benefit to the client.

The defendant benefits too. No hospital or insurance company wants to spend money needlessly. Early resolution means that the defendant doesn’t have to spend tens of thousands of dollars in expenses and tens of thousands more in legal fees. The only way it makes sense to spend that money is if, at the end of the day, the “defendant” (read insurer/hospital) believes it can either win the case or settle it for less down the road. But here’s the thing – a case can usually settle early on for less than the case would be worth had the case gotten closer to trial. This isn’t always true, of course, but as a general rule, a good case does not become less valuable over time.

Plaintiffs’ attorneys don’t undersell their cases to get an early settlement, but in practical terms, attorneys and clients are usually willing to consider some discount because they know that an early settlement is to their mutual benefit.The plaintiff gets a guaranteed financial payment now rather than waiting eighteen months for a trial and then a possible appeal that may drag the case out another two years. In that circumstance, the plaintiff is usually willing to take a little less money now because it is certain. It’s the age-old question: would you rather have X amount of money now, or wait eighteen months for the chance of getting more? For most plaintiffs, it’s an easy answer. Also the defense can pay less on a case than it would have ended up paying anyway and save thousands in expenses and legal fees by doing so. It’s a win-win for all parties.

Just do the math!

The big secret with early settlements (and which can sometimes be difficult to explain to a client) is that even though an early settlement might be for less than what a jury might award, the client can actually put more money in his or her pocket with a lower settlement amount. Again, we’re back to the issue of litigation costs. If a firm spends $10,000 to investigate a case and get it ready to file rather than $100,000 to take a case to trial, that is an extra $90,000 that goes straight to the client. Also, some law firms will have a contingent fee agreement in which the fee is higher (usually from 1/3 to 40%) when the case goes to trial, which serves to compensate for the additional time,  risk and expense of going to trial. When you consider the higher legal fees and the increased costs of litigation that have to be paid back, it can actually take a substantially larger jury verdict to put the same amount of money in the client’s pocket as he or she would get with a smaller early resolution.

Some cases may just need to be tried

I don’t mean to imply that every case that gets filed should be settled early. Far from it. Some lawyers undoubtedly file cases that are simply without merit and should be defended vigorously. Other cases – while they may be defensible – fall into a middle category where the care may not be the best but the plaintiff has problems with his/her case too. Some cases can be difficult to evaluate without further investigation and discovery to gauge the strength of the case. In those cases, it is entirely appropriate to proceed with litigation – even on a somewhat limited scale through discovery. No doubt there are instances where insurance companies do need to protect the interest of their doctors, and sometimes that means vigorously defending a case all the way through trial.

Some cases, however, – the cases where the medical care is truly egregious and the damages are clear – need to be looked at early on to see if the two sides can be reasonable and find some middle ground. If a case is going to ultimately settle (and believe me, experienced attorneys and claims adjusters can usually identify those cases early on), it makes sense to talk sooner rather than later. It requires compromise on everyone’s part, but the value to both sides is so great that it makes sense to talk early and get it done.

What has been your experience?

I’d be curious to know the experience of our readers. Has anyone been involved in a lawsuit that settled? Did it resolve early on or did it stretch out for years? Do you think the time involved had any impact on the amount of the settlement? Any tips or tricks you might suggest? Let’s hear from you – maybe we can all learn how to get these cases resolved earlier and stop wasting time, resources and money.

You may also want to read these related posts:

Frequently Asked Questions (FAQ’s)

A View from the Shady Side – The Defense Perspective

Every bad outcome does NOT a malpractice case make! Some practical advice

 

Family Feud – Where's Your Sense of Humor?

Wednesday, May 12th, 2010

Everyone has, at one time or another, been offended by a relative’s hurtful comments. In the case of Sunda Croonquist’s family, however, the offended relatives were not content to let the offending comments pass without notice.  As reported by ABA Journal and other outlets, the family members actually sued her. Turns out that Ms. Croonquist is a comedienne, who takes advantage of her mixed ethnicity – she is half-black and half-Swedish and is married to a Jewish man – to poke fun at her family. Apparently, the family was not laughing, especially when Ms. Croonquist publicly joked that some of them were racist. Several of Ms. Croonquist’s in-laws, including her mother-in-law, filed suit in New Jersey alleging, among other counts, defamation and infliction of emotional distress.

Ms. Croonquist, however, got the last laugh. After Ms. Croonquist’s lawyers filed a motion to dismiss (to add to the familial complexity, Ms. Croonquist was represented by her husband’s law firm), the trial court ruled that Ms. Croonquist’s comments, while perhaps hurtful, were protected by the First Amendment because they were merely her personal opinions. In order to prove a case of defamation, one has to prove that the speaker made a false statement. An opinion, being a subjective belief of the speaker, cannot be considered true or false, so it cannot support a claim for defamation. So Ms. Croonquist is free to continue insulting her relatives, and comedians around the country can continue making mother-in-law jokes.

No word yet on when the next family reunion is going to be held.