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Medical Malpractice


verdict. It seems that the only way to bring about either one of those events is to file your lawsuit. Pre-suit settlements are becoming quite the rare event. Te longer a case muddles on, the better the payday for


the defense lawyer. Hopefully there are still some defense lawyers who know that early resolution really is in their client’s best interests. I am starting to wonder, however, if those defense lawyers are becoming extinct. What you must keep in mind as well is the fact that


defense firms typically make money by dealing in volume. Te more cases, the more staff, the more lawyers - the better the firm’s income stream. When the top defense lawyers in the state are barely making over $200 per hour, you need a lot of billable hours and a lot of billing people to make a decent living. Volume has its own problems. How often have you been involved with trying to get a case scheduled for trial and you are wondering if the defense lawyer has any free dates in the next millennium? Are you having a lot of fun when trying to schedule depositions? I now know the frustration of trying to practice law with civility and get my cases moving forward at other than glacial speed. Parenthetically, let me take this moment to apologize to all those out there in the plaintiff bar whom I frustrated with scheduling issues these past many years. I really was busy! On the plaintiff ’s side, we all know how much time, effort


almost endless list of experts to engage to counter plaintiff ’s experts? At times it seems like they are standing by their phones waiting to help slay the Evil Dragon – no, not the plaintiff but the cur who had the audacity to question a physician’s judgment and skill – yes, you! When there are co-defendants, which is often the case,


the task is all the easier since cooperation and getting the story straight is a hallmark of good defense counsel. Of course, there are those who would throw the co-defendant under the bus and are quite skilled at doing this, but we all know who they are and there are not too many of them. You are, therefore, facing a united front on the defense team. Information, records, background checks and experts at times are readily shared for the common good. Step Tree: Yes, there is also the paper war. Defense


counsel loves discovery (contrary to popular belief) since time is money. I know you know that, but do you truly appreciate what that means in terms of getting your case resolved? Te one thing I have noticed since my conversion is the depth of my abject frustration when dealing with defense lawyers in trying move a case along in a timely and meaningful fashion toward resolution. Yes, I now get it – the only way to see a payday on our side of the courtroom is by settlement or


44 Trial Reporter / Summer 2010


and money is invested in the investigative process. Te maxim of the computer world can readily be adopted – junk filed – junk result. Tis is where the advantage has always been known to exist for the plaintiff lawyers. A defense lawyer gets a case in at the same time he or she is working on about twenty or thirty other cases. Te initial administrative activities take-up the initial phase of the case: acknowledging receipt of the file, getting it set-up in the system, doing conflicts checks. Tere is barely enough time to read the Statement of Claim and figure out if your client has been properly served and then engage in the procedural checklist I alluded to before. Defense lawyers do not, contrary to popular belief, have access to HIPAA protected records. Defense lawyers are at a distinct disadvantage since they


do not have all the necessary records to formulate a complete defense strategy. What may be perceived as delay for the sake of delay is really delay to try to get caught up with the plaintiff ’s lawyer in terms of knowledge of the facts of the case. Keep in mind, virtually every insurer is breathing down a defense lawyer’s neck for the infamous 90 day report. What is this, you ask? Defense lawyers are required to unpack their crystal ball and make determinations on the case’s value, the chances of winning, costs of defense, costs of experts and so on and so on. We barely have the medical records three-


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