Lee S. Goldsmith, M.D., LLB
If you are going to represent patients in medical malpractice actions you have to be prepared, with every case taken, that you may have to try the case in court. The attorney who is not prepared to try the case, does not prepare properly and the case will either be settled for a figure that is too low or will lose the case at trial. Defense attorneys win the majority of cases tried before juries.
If a case is prepared for trial, if the attorney is ready and willing to try the case in Court, that case should settle for an appropriate figure.
Jordan and I have tried a number of cases together. When I first started as an attorney, I sat in the second seat and prepared cases for a senior trial attorney. To try a case in Court, you learn by watching others and get mentored in the rules and procedures. However, no matter how much you watch trials, no matter how many times you examine and cross-examine witnesses, there is no experience similar to trying a case alone.
Trying a case representing a defendant is fundamentally different from trying a case representing a plaintiff. As the plaintiff’s attorney, you have the burden of proof; you have the burden of going first and making that first impression on the jury. As a defense attorney, you are a counter-puncher repairing the damage done by the plaintitt’s witnesses, and more importantly, leaving that last impression on the jury.
The longest trial for me was three months in length. The defendants were unwilling to settle, or more appropriately, I was unwilling to settle for the sums that were offered my client, and she agreed. The assisgnment judge was very annoyed with me and, as a punishment, assigned me to a judge who had never been involved in a medical malpractice case, let alone a medical malpractice case and products liability case combined.
I was the plaintiff’s attorney, trying the case alone, against five defense attorneys.They represented a cardiovascular surgeon, two cardiologists, one hospital, a heart valve manufacturer and a heart valve suture manufacturer.
The plaintiff was the wife of a 27-year-old man who had had a heart valve replaced and then, weeks later, the sutures holding the valve in place broke, requiring a second operation, after which he developed an infection and ultimately died.
The trial started in January after a week of jury selection. Snow caused delays in the trial. One day we appeared in Court and the heat was not functioning and we were sent home. Every motion that could be made by the Defense was made, and the judge did not have the experience to promptly respond, so that arguments were longer and required responses, which the experienced judge would not have needed. After my examination setting the stage, each of the defense attorneys would have their opportunity to respond, and that extended the days.
Jury deliberations began the week of March Madness and the basketball tournament. The judge was a fan. He wanted to watch the matches and called the jury in to deliberate on a Saturday, had a television in his chambers and watched the games.
Finally, the following Monday the jury reached a verdict on the plaintiff’s behalf.
The win was important on a number of levels. First and most important, it provided the widow and her children with funds that, hopefully, helped them in the years that followed. Second and probably just as important, is that the insurance companies and the defense attorneys learned that a Goldsmith will take appropriate cases to trial, will fight for weeks on end and can beat them despite the odds, the money they have to spend and, in this case, the added inexperience of the judge.