When Preventable Medical Errors Impact Your Life, Should You Leave Your Future In The Hands Of The Federal Government? Conservative Organizations Say No To Federalizing State Medical Malpractice Laws

Preventable medical errors kill and injure Americans at an alarming rate.  A study printed in the Journal of Patient Safety, as reported by Scientific American, reports that “the true number of premature deaths associated with preventable harm to patients was estimated at more than 400,000 per year,” and that serious injury occurs 10- to 20-times as often.

Despite this epidemic, the federal government is attempting to trample on state’s rights by fast-tracking legislation that protects unsafe health care providers, aka H.R. 1215.  Normally, your right to hold unsafe health care providers accountable for preventable medical errors is controlled by state law.  There are many lawyers dedicated to protecting your right.

Now, in a surprising turn of events, over 10 conservative rights organizations and leaders joined together in opposition to H.R. 1215.  In a letter to Speaker Paul Ryan, these conservatives are urging Congress to reject “the ‘federalization’ of state tort law that is contrary to constitutional principles and represents an undue restriction on freedom.”

 

HR 1215 Conservative Opposition Letter

In other words, even Republican supporters are offended by the federal government’s attempt to overstep its bounds and take power away from states and their citizens.

It is likely you know someone who has been injured or killed by a preventable medical error, or that you will be impacted by a preventable medical error sometime in your life.  Joe is committed to protecting your right to be fully and fairly compensated when your life is impacted by preventable medical errors.  Are you?

If you would like to keep the federal government from limiting your right to be fully and fairly compensated when your life is impacted by preventable medical errors, then please reach out to your Congressional representative and senators and let them know.

Medical Malpractice in a U.S. Epidemic

Medical malpractice in the U.S. is an epidemic.  According to researchers at Johns Hopkins Medicine, preventable medical errors kill as many as 250,000 Americans every year, and injure countless others. That would make it the third leading cause of death in America–behind only heart disease and cancer. When was the last time you were called to donate money to help fight preventable medical errors?

Yet, the conversations about medical malpractice focus on doctor’s insurance premiums and cost of health care. The irony is that reducing the number of preventable medical errors likely would reduce health care costs and insurance premiums, while also protecting patients and their families.

What is amazing is that only a small percentage of those injured by preventable medical errors file lawsuits.   For instance, Maricopa County has 4 million people and, based on the above statistic, at least 3,125 Maricopa County residents die each year from medical negligence–that does not include the thousands injured by preventable medical errors.  Yet, there were only 269 medical malpractice lawsuits filed in 2014.

It is likely the vast majority of those lawsuits had merit. Why?

As seen from my last post, the injured person carries a huge burden of proof. Meeting this burden of proof, and facing the scorched earth defense that is typical, usually costs over $100,000 for experts, discovery costs, and other expenses. That does not include attorneys’ fees, which are usually only paid if the injured person’s case is successfully resolved. What person is going to risk over $100,000 and two years to litigate a case that has no merit?

Also note, that Courts will dismiss cases that have no merit and jurors are not easily swayed by sympathy. Therefore, the myth that doctors and hospitals pay to make frivolous cases go away is unfounded. The bigger problem is that the vast majority of health care providers who make preventable medical errors are never held accountable.

Contact me if you think your health care provider made a preventable error and caused serious and permanent injury.

Medical Malpractice Basics

In Arizona, people have the right to sue their health care providers for medical malpractice.  Regardless of the false narratives about how these cases impact the delivery of health care, there is a constitutional protection to your right to hold health care providers accountable for their negligence.

Historically, medical malpractice laws were  designed to accomplish certain specific social objectives, including addressing poor quality care, fairly compensating patients for injuries resulting from negligence, and imposing justice in a manner that would make future occurrences less likely.

As the injured person, you have a burden.  You must prove three things.  In basic terms, you must prove: (1) the health care provider either did something they should not have (negligent act) or did not do something they should have (negligent omission), (2) that the negligent conduct caused an injury, and (3) your damages.

In most cases, you must prove these three elements by a preponderance of the evidence.  Arizona’s lawmakers raised the burden of proof in cases involving emergency room care and emergency medical services to clear and convincing evidence.   Frankly, with the conservative nature of Arizona jurors and general deference given to health care providers, you might want to view every case as requiring clear and convincing evidence.

In addition to raising the burden of proof, Arizona’s lawmakers have worked hard to interfere with your constitutional rights and impede your ability to hold health care providers accountable.  These obstacles will be addressed in future blog posts, but just know that Arizona’s lawmakers enacted several obstructionist laws that aim to limit your right to sue, limit your right to obtain full and fair compensation, and limit your right to the truth about what happened to you.

Contact me if you think someone you love was seriously and permanently injured by a careless health care provider.

Medical Malpractice Risks Require Heightened Awareness

Medical Malpractice is a prolific problem in Arizona, and the United States.  Doctors, nurses, and other health care providers are expected to follow certain rules to protect their patient from injury.  Many times they are careless, and sometimes even reckless.

Like the person who accelerates to get through a yellow light but hits a car turning left in front of them, most health care providers do not intend to cause an injury.  Sometimes they cut corners or take calculated risks because doing so never caused a serious injury before.  Sometimes they figure this patient is just like past patients.  And other times they are distracted.  In those situations, critical judgment necessary to protect their patient is temporarily suppressed or missing altogether.

Therefore, you should do what you can to protect yourself or your loved one.  Ask questions.  Lots of them.  Demand answers.  Lots of them.  Do not be afraid to get a second opinion or another perspective.  The health care providers are being paid a lot of money to provide safe and effective care.  Patients pay significant sums for their safety.  They should not have to pay with their lives as well.

Contact me if you think someone you love was seriously and permanently injured by a careless health care provider.

JURY RETURNS $6.3 MILLION VERDICT IN MEDICAL NEGLIGENCE CASE

PHOENIX, ARIZONA – Shawn Cunningham, Joseph D’Aguanno, and their hard-working team at Harris, Powers & Cunningham obtained a $6.3 million verdict in a medical malpractice case against Banner Health for the negligence of its Emergency Department physicians for failing to diagnose and treat the patient’s vertebral artery dissection. Shortly after Banner discharged the patient, he suffered a disabling stroke. As a result, the 39 year-old man was totally disabled.

Birth Injury Verdict Further Screws Child*

MLive, an online Michigan news site, reported a recent jury verdict in a birth trauma case.  The Michigan jury awarded $13 million to the parents of baby girl who was left with limited use of her right arm following birth trauma.

The injury is commonly called a brachial plexus injury, referring to a stretching or tearing of the network of nerves running from the spine in the lower neck to the armpit and arm.  These nerves innervate the upper arm, forearm, and hand.  Permanent damage to these nerves can result in partial or complete loss of function.  It is usually caused by excessive traction during the birthing process.

In the Michigan case, the baby’s nerves were completely severed when resident doctors pulled down excessively on her head while her shoulder was caught on the mother’s pelvic bone.  The pulling down of the baby’s head stretches the nerves.  Continued traction without release of the shoulder will tear the nerves.  The family alleged that the doctors should have done a cesarean section or delivered using a method that would have caused less strain on the baby.  The hospital employed a typical defense to these cases…it was not us but the natural birthing process that caused the injury.  The jury did not buy into this defense, likely because the injury could have been prevented with reasonably prudent care.

The worse thing about this verdict is that it will be reduced (to about $4 million).  Michigan places a cap on non-economic damages at $433,400.  In other words, Michigan lawmakers believe that the inability to effectively use an arm–thereby limiting athletic pursuits, restricting recreational options throughout the baby’s lifetime, and likely creating social anxiety and embarrassment–is worth less than half-a-million dollars.

The child  has undergone multiple surgeries and continues to wear a brace on her right arm, which is malformed.  This is a permanent injury that will never go away.  She will require a lifetime of assistance in completing basic daily tasks, such as brushing her hair or getting dressed.  This injury will limit virtually every aspect of her life.  And if she lives a normal life expectancy, Michigan says the injury is only worth around $5,300 a year, or $14.50 a day.

Really?  Would give up your arm for $14.50 a day?

I doubt any Michigan lawmakers would.

 

 

* This blog should be used for informational purposes only.  It does not create an attorney-client relationship with any reader and should not be construed as legal advice.

Preventable Medical Errors Kill Americans at an Alarming Rate*

There is an epidemic that is killing almost half-a-million Americas and injuring millions of others every year.  This epidemic is as bad as the top two killers of Americans, cancer and heart disease (each claiming over 550,000 lives each year), and is far worse than accidents (claiming over 120,000 lives each year).  What makes this epidemic more tragic than the most common causes of death in the U.S. is that these deaths are 100% preventable.

Preventable medical errors kill and injure Americans at an alarming rate.  A new study printed in the Journal of Patient Safety, as reported by Scientific American, reports that “the true number of premature deaths associated with preventable harm to patients was estimated at more than 400,000 per year.  Serious harm seems to be 10- to 20-fold more common than lethal harm.”  This is a problem of epidemic proportions that must be fixed.

When was the last time you heard politicians or lobbyists address how to prevent medical errors?  Probably never.  Rather than publicly address ways to make health care safer, they pollute the airwaves with stories about “defensive medicine” and increased costs associated with “frivolous lawsuits.”  They suggest that doctors are afraid of lawsuits so they order more tests; however, the practical difference is looking for the problem versus taking a wait-and-see approach.  Do you want your cancer diagnosed now or later?

Americans are led to believe that medical negligence suits are an epidemic. However, according to the National Association of Insurance Commissioners, the total amount of money spent defending claims and compensating victims of medical negligence in 2010 was $5.8 billion, or just 0.3 percent of the $2.6 trillion spent on health care in the U.S. that same year.  Moreover, if hospitals were practicing defensive medicine, then why do over 400,000 Americans die from preventable medical errors in hospitals every year?

Every 1 minute and 15 seconds someone’s mother, father, spouse, sibling, grandparent, or child needlessly dies in the hospital because of a medical error.  In that same amount of time, 10 to 20 other hospital patients are being injured.  Frighteningly, these statistics do not include victims where the medical negligence occurs outside the hospital.

The epidemic of patient harm in hospitals must be taken more seriously if it is to be curtailed.  This is a pervasive problem that should demand decisive action on the part of providers, legislators, and people who will one day become patients.  Yet, the action and progress on patient safety is frustratingly slow.

The following case demonstrates how an innocent young woman, injured by improper care, was victimized by a hospital system that failed her.

A 26-year-old woman entered a Phoenix-Area Hospital for removal of an ovarian cyst.  The surgery was completed without complication; however, after entering the post-anesthesia care unit (PACU), she had an adverse effect from the anesthesia that caused her to breathe less efficiently.  The anesthesiologist provided Narcan, a medication that blocks the effects of anesthesia and narcotic medications.  Her respiratory drive and vital signs returned to acceptable levels.

While still under the influence of Narcan, the PACU nurse continued to administer narcotic medications—based on the orders the anesthesiologist wrote before the patient ever experienced breathing problems.  The orders were never changed and the nurse never questioned whether it was appropriate to continue giving the patient medications that could cause breathing problems.  Neither provider had significant experience with using Narcan in this setting.

The problem for the patient is that as the Narcan wears off the narcotic medications are able to overwhelm the body, causing deeper sedation and stopping the patient from breathing.  In a groggy state, only 90 minutes after entering the PACU, the PACU nurse sent the patient home with her husband.  The PACU nurse never told the husband about the event that necessitated Narcan, and never warned the husband about the potential adverse effects of the narcotic medications she administered.

The patient’s husband brought her home and settled her into bed to rest, not knowing that she would never wake up.  Her death could have been prevented if any one of the health care providers took steps to monitor her condition for longer than 90 minutes.  They assumed she would be fine.

Sadly, no one has stepped up and admitted to their mistakes.  Instead, the health care providers argue that the husband is to blame because he should never have left her side once they arrived at home.

* This blog should be used for informational purposes only.  It does not create an attorney-client relationship with any reader and should not be construed as legal advice.

Arizona Injury Victims Keep Getting Screwed

This is the first of a series of posts noting how Arizona injury victims keep getting screwed. The main culprit is the Arizona legislature, doing the dirty work of insurance companies and the health care lobby.

If someone in Arizona is the victim of an automobile crash, they will later be victimized by the health care providers that treated them. It does not matter if you have health insurance. If the insurance pays the provider the agreed upon rate for services, the provider can come after your injury award for the difference between what they billed the insurer and what the insurer paid. However, the providers don’t have to bill your insurer and can, instead, bill their entire amount against your award.

This creates further issues when you consider that certain types of insurers are also entitled to be repaid for amounts they pay out for injury-related care. It does not take an economist to realize that the injured victim will have to compensate the health care providers for every penny billed. On its face this seems reasonable; however, most Arizona drivers who cause crashes carry minimum insurance ($15,000). So, an injury victim who goes to the hospital for evaluation will have to pay the hospital providers approximately $6,000 from the $15,000, after already paying the hospital hundreds of dollars to obtain medical records to support the claim. After paying attorneys fees and costs, the victim is left with barely enough money to buy an Apple Macbook Pro.

Understaffed Medical Facilities Amplify Medical Errors

If you have ever survived a huge RIF (reduction in force) at your company you know what comes next.  The surviving employees must pick up the slack and do extra work.  Your company is now understaffed.  Without enough employees to do a job, the job cannot be done properly.  This can lead to attitudes like, “this will have to do,” “this was not in my job description,” and “I can’t continue to do everything.”  Short cuts must be taken.  Work quality suffers.  Things get missed.  You are left hoping you do not make a mistake that cannot be corrected.

The health care profession is not immune to understaffing.  Understaffing occurs at hospitals and nursing homes for many reasons.  Owners often intentionally understaff their facilities, short-term and long-term, to boost profits.  Patients do not receive appropriate care.  In the hospital setting it could be health care providers missing signs and symptoms of a serious condition; in nursing homes, it could result in abuse or neglect.  Understaffing is associated with high urinary catheter use, poor skin care, poor feeding, malnutrition, dehydration, and starvation.  Overworked staff tend to rush around, sometimes intentionally skipping certain care needs.  Patients’ conditions are more likely to decline.

In an understaffed facility, expect the unexpected.  Medical errors already plague U.S. hospitals.  These medical errors are magnified and compounded when there are not enough employees to ensure proper patient care.  For instance, a nurse responsible for the postoperative care of a patient might miss subtle signs and symptoms of a respiratory compromise.  Rushing around and trying to accomplish too many things in a short period of time could lead the nurse to assume that her healthy patient will be okay, just like the many other patients before her, without focusing on the patient’s specific situation.  Prematurely discharging the patient under the assumption that things will be fine, without paying attention to the amount of narcotic medication administered, could result in the patient suffering a fatal respiratory failure after getting home.

Sadly, there is no easy way to find out if your hospital or nursing home is understaffed; however, certain tell-tale signs could suggest you need to be concerned.  For instance:

Is the nurse constantly rushing around and not taking the time to thoroughly answer your questions?
Does the nurse appear stressed or anxious?
Does the nurse appear to be cutting corners or not being thorough in her duties?
Is the patient’s condition deteriorating?

If you think understaffing caused injury to you or a loved one, you should call an experienced medical negligence attorney like the ones at Harris Powers & Cunningham (602.271.9344).

Where is the Justice???

Our founding fathers explicitly declared that trial by jury is essential to secure the liberty of man and enforce the principles of the Constitution.  Yet, efforts are underway to take this weapon away from you.

We have all heard the bad lawyer jokes, mistakenly epitomized by Shakespeare’s famous quote, “First thing we do, let’s kill all the lawyers.”  The ironic thing is that this statement was made because lawyers stood in the way of the scheme, hatched by Dick the Butcher, to enable Jack Cade to overthrow the king.  The champions of justice, protectors of the Constitution–lawyers–were a major impediment to rebellion.

Our jury system was designed to provide justice, deliver order, and insure safety by holding people accountable for their transgressions.  Many safety systems and procedures have been implemented in this country because of the work of trial lawyers.  Rules were not meant to be broken.  Needless endangerment is not a byproduct of living.  Greed is not allowed to prevail over safety.

The problem is that we have a Dick the Butcher among us–largely represented by insurance companies.  The scheme is to overthrow the justice system under the guise of “tort reform.”  People have been convinced by these insurance companies, often masked as public interest groups like the U.S. Chamber of Commerce, that our justice system is dangerous to their way of life–to the point that they are willing to give up their right to hold people accountable for their transgressions.  One way this is accomplished is by demonizing the trial lawyers (i.e., kill all the lawyers).  Our justice system is losing its power to hold people, corporations, hospitals, and insurance companies accountable for the harm they cause.  The facts of a case often take second chair to the personal attack of the injured person and their lawyer.

Through decades of well-funded mudraking, Dick the Butcher has instilled fear in the hearts and minds of Americans.  Think about it.  Why would a person be willing to limit the amount of money an injured person can receive when another has caused significant brain injuries or loss of enjoyment of life from a lost limb?  Why do judges and juries view injured persons and their lawyers with detest, but tolerate defendants and their lawyers who perjure themselves?  Rather than focus on the bad conduct of the defendant, Dick the Butcher tells Americans that the  injured person’s lawyer gets rich at the expense of our economy and health care system.  There is no evidence to support this propaganda.

As tort reformers learned from The Bronx Tale, “it is better to be feared than loved because fear lasts longer.”  Fear is a powerful tool.  By causing fear, reason and rational thought become non-existent.  Without evidence, tort reformers tell Americans that access to health care and success of the economy are threatened by greedy trial lawyers; so, juries must punish injured persons to punish trial lawyers and save America.

As my prior post demonstrates, when juries focus on the defendant’s conduct and the harm caused, they are able to ignore tort reform propaganda and return a fair verdict.  That is all trial lawyers are after–fair verdicts.  The jury system was designed to foster fair verdicts–ones not influenced by bias, prejudices, and emotion.

The dilemma is that tort reform acts primarily outside the courtroom.  Caps and limitations on actions are not enacted by well-reasoned discussion of fact-based evidence.  If you want to protect your rights, because tort reform will eventually affect you or a loved one, you need to speak up.  Contact your legislative representatives, local and federal, and tell them that enough is enough.  The only way to protect Americans is to stop pandering to insurance companies.  To ensure safety, order, and justice, we must call out Dick the Butcher and mute his efforts.

Jury Returns $5.875 Million Verdict in Medical Negligence Case

PHOENIX, ARIZONA – Shawn Cunningham, Joseph D’Aguanno, and their hard-working team at Harris, Powers & Cunningham obtained a $5.875 million verdict in a medical malpractice wrongful death case. The Maricopa County jury determined that the untimely passing of a 32-year-old wife and stay-at-home mother of two young children would not have happened but for a series of serious omissions on the part of her health care providers. The jury deliberated for six hours following a two-and-a half week trial.

The general facts are:

On the morning of March 17, 2008, the patient was rushed by ambulance to a local Emergency Department (ED) with severe abdominal pain, bloody stool, and a history of Crohn’s disease. The ED physician evaluated her and ordered a stat CT scan around 8:50 a.m. Around 11:30 a.m., the ED physician learned that the only CT tech on shift fell ill and the stat CT could not be done until the next shift, scheduled for 5 p.m. The patient’s condition continued to worsen and, around 1 p.m., the ED physician decided to have a hospitalist admit the patient to the hospital. Life-threatening surgical issues should have been high on the differential, but neither the ED physician nor the hospitalist called the on call surgeon because they believed he would not see the patient without a CT scan.

Despite receiving pain medication, the patient was in agony. Her condition continued to decline. The CT was not completed until 6:25 p.m. and the results were not communicated to the hospitalist until 7:15 p.m. With the results in hand, the hospitalist contacted the on call surgeon for an urgent, stat, surgical consult. The surgeon ordered conservative therapy and advised he would see the patient in the morning. In response, because of the grave nature of the patient’s condition, the hospitalist pleaded with the surgeon to come in. The surgeon abruptly hung up. Even a call from the hospital’s CEO failed to get the surgeon in that night. The surgeon did not come in and perform surgery until the following morning, but it was too late. The patient was in septic shock and the beginning stages of multi-organ failure. She died on March 19, 2008.

The near unanimous jury verdict made it clear that the health care providers needlessly endangered their patient by failing to comply with simple safety principles — one of which requires physicians to timely diagnose and treat a potentially life-threatening surgical condition. The inability to perform a stat CT scan did not relieve the health care providers of their obligation to protect their patient. The untimely death of this woman — who was a wife, mother, and child — could have been avoided with a simple phone call to the surgeon when the stat CT scan became unavailable or by obtaining an alternative imaging study. The culture at this hospital prevented the health care providers from considering these simple, potentially life-saving alternatives. The omissions of the health care providers put all patients at risk and the jury’s verdict made it clear that such omissions are not acceptable.

The health care providers committed medical malpractice and the jury apportioned 40% of the fault to the on call surgeon, 30% to the hospital, 25% to the hospitalist, and 5% to the ED physician.

Learn more about Harris, Powers & Cunningham at www.hpclawyers.com

IP BASICS

How should I follow a blog posting that netted record hits for this blog and ride the momentum into tomorrow?  Sadly, I don’t know.  In looking at legal news for the day, Blago does not dilate my pupils even one nanometer and I am not sure I can control my emotions over the recent executions by the Taliban.  Therefore, I will just stick with my original manifesto of providing information and answers. 

I am a little late for a Bilski discussion, so want to address some basic IP concepts. 

Copyright is an exclusive right granted to the author of “original works of authorship” including literary, dramatic, musical, artistic, and certain other intellectual works, that includes the right to copy, distribute, and adapt the work.  The copyright protects the form of expression, not the subject matter of the work.

A trademark is a distinctive word, symbol, or device used in commerce to identify the source of the goods and to distinguish them from the goods of others.  A servicemark is a trademark that identifies and distinguishes the source of a service rather than a product.  Trademark/Servicemark rights may be used to prevent others from using a confusingly similar mark.

A patent grants an inventor “the right to exclude others from making, using, offering for sale, or selling” the invention in the United States or “importing” the invention into the United States.  Contrary to common belief, a patent does not grant the right to make, use, offer for sale, sell, or import.

The Big Picture of Litigation

Let’s start with the presumption that someone was wronged, they rightfully want to exercise their legal rights, and you have been retained to protect their rights.  Let’s even presume, as hard as it might be, that your client’s goals are reasonable and realistic. 

An attorney’s goal should be to achieve the best result under the circumstances.  Clearly the client’s interests are priority number one; however, you should also be mindful of your ethical obligations (and maybe even moral responsibilities).  For example, pushing a case through extensive discovery and trial purely because the client wants the opposing party to spend lots of money – as either leverage for settlement or commercial advantage – should not be tolerated by the profession.  The American Board of Trial Advocates published a white paper that identified the goals and objectives of the civil justice system to include “fairness, confidence of the citizenry and litigants in the outcomes, impartial judges and juries, deterrence of wrongdoing and compensation for injury caused by wrongful conduct.”  To further these competing goals, cases should move through the system expeditiously and efficiently.  Lining the firm’s coffers or running someone out of business is not part of the formula.

Tomes have been written discussing the civility, lawyer conduct, and miscreants.  I would like to impart the big picture upon my readers.  How do you maximize the results for both you and your client while furthering the goals of the civil justice system? 

First, know your enemy – this includes the party and potentially the insurer.  Are they the kind of litigants that cave in to pressure or respond more to persuasive arguments?  Are they turned off by pestering or do they require persistent reminders?  If you are unsure, strike a balance.  You should also know your legal counterpart – what are their habits and how to persuade them.  Some attorneys in my town are notorious for avoiding trial and settling lawsuits at the last minute.  If you are up against them, you know what to expect and are already ahead in the game.

Second, do your homework early.  If you are prosecuting the case, you want to be trial ready before you ever put the opposing party on notice about the potential lawsuit.  This is not always possible; but the key is that you have turned over every stone before making a demand.  Why?  Because you want to be several steps ahead of your opponent.  After you make your demand, if the other party is receptive to pre-litigation mediation, you want to be able to counter their factual and legal arguments before they ever make them.  If you are on the defense, you want nothing but asses and elbows once you get wind of the potential claim.  You have to anticipate that the other side is almost finished with the race when you start, so you have little time to catch up.

Third, be reasonable.  This ties in with the next item – integrity.  Demanding a $1 million in a medical malpractice claim based on your client requiring a second surgery to correct something that went wrong the first time, leaving no permanent injury, is patently unreasonable.  Yes, there are some jurisdictions where juries will tolerate such deviance, but the juries here will punish you.  Your demands need to be reasonable.  Your counters should be reasonable.  Your legal and factual arguments should be reasonable.  Once you step off the curb of reasonableness, you enter the highway of fraud.

Nothing is more valuable than your integrity.  I recently read a blog post that suggested filing more motions in litigation will make settlement more likely.  Granted, demonstrating to your counterparts that you are not afraid of the trenches shows you have resilience and passion, but it also suggests you will throw pasta at the wall to see what sticks; in other words, you will file motions regardless of the likelihood of success.  For what purpose?  In my eyes, you lost your integrity.   Edward R. Murrow wrote, “To be persuasive we must be believable; to be believable we must be credible; credible we must be truthful.” 

Let’s start with the presumption that someone was wronged, they rightfully want to exercise their legal rights, and you have been retained to protect their rights.  Let’s even presume, as hard as it might be, that your client’s goals are reasonable and realistic. 

An attorney’s goal should be to achieve the best result under the circumstances.  Clearly the client’s interests are priority number one; however, you should also be mindful of your ethical obligations (and maybe even moral responsibilities).  For example, pushing a case through extensive discovery and trial purely because the client wants the opposing party to spend lots of money – as either leverage for settlement or commercial advantage – should not be tolerated by the profession.  The American Board of Trial Advocates published a white paper that identified the goals and objectives of the civil justice system to include “fairness, confidence of the citizenry and litigants in the outcomes, impartial judges and juries, deterrence of wrongdoing and compensation for injury caused by wrongful conduct.”  To further these competing goals, cases should move through the system expeditiously and efficiently.  Lining the firm’s coffers or running someone out of business is not part of the formula.

Tomes have been written discussing the civility, lawyer conduct, and miscreants.  I would like to impart the big picture upon my readers.  How do you maximize the results for both you and your client while furthering the goals of the civil justice system? 

First, know your enemy – this includes the party and potentially the insurer.  Are they the kind of litigants that cave in to pressure or respond more to persuasive arguments?  Are they turned off by pestering or do they require persistent reminders?  If you are unsure, strike a balance.  You should also know your legal counterpart – what are their habits and how to persuade them.  Some attorneys in my town are notorious for avoiding trial and settling lawsuits at the last minute.  If you are up against them, you know what to expect and are already ahead in the game.

Second, do your homework early.  If you are prosecuting the case, you want to be trial ready before you ever put the opposing party on notice about the potential lawsuit.  This is not always possible; but the key is that you have turned over every stone before making a demand.  Why?  Because you want to be several steps ahead of your opponent.  After you make your demand, if the other party is receptive to pre-litigation mediation, you want to be able to counter their factual and legal arguments before they ever make them.  If you are on the defense, you want nothing but asses and elbows once you get wind of the potential claim.  You have to anticipate that the other side is almost finished with the race when you start, so you have little time to catch up.

Third, be reasonable.  This ties in with the next item – integrity.  Demanding a $1 million in a medical malpractice claim based on your client requiring a second surgery to correct something that went wrong the first time, leaving no permanent injury, is patently unreasonable.  Yes, there are some jurisdictions where juries will tolerate such deviance, but the juries here will punish you.  Your demands need to be reasonable.  Your counters should be reasonable.  Your legal and factual arguments should be reasonable.  Once you step off the curb of reasonableness, you enter the highway of fraud.

Nothing is more valuable than your integrity.  I recently read a blog post that suggested filing more motions in litigation will make settlement more likely.  Granted, demonstrating to your counterparts that you are not afraid of the trenches shows you have resilience and passion, but it also suggests you will throw pasta at the wall to see what sticks; in other words, you will file motions regardless of the likelihood of success.  For what purpose?  In my eyes, you lost your integrity.   Edward R. Murrow wrote, “To be persuasive we must be believable; to be believable we must be credible; credible we must be truthful.”

www.daguannolaw.com