Revisiting Pretrial Protocol and Procedure

In last month's issue, we discussed the defense problem of increasingly high med-mal verdicts. This month, we explore strategies that defendants anticipating their personal day in court should consider if they hope to buck the trend toward high jury verdicts in medical malpractice actions.

Counsel experienced in the defense of medical malpractice cases generally retain medical defense experts early in the litigation, to assist with the course of discovery and interpretation of medical records. The insight and expertise provided by such consultants is often a factor in the formulation of discovery requests. None of this is new; it is clearly standard operating procedure in the defense of medical negligence claims.

Similarly, case presentations before mock juries are a valuable teaching tool. Often, two or more mock juries will be “empanelled,” to provide the defense with an opportunity to present its case in alternate fashions, in order to identify the more effective technique and message for trial. The expense of preparing for and presenting a case to a mock jury panel is not insignificant. However, when the potential verdict is in the seven- and eight-figure range, the investment is often warranted.

If a mock jury is empanelled, and a case presented to the jury, it is imperative that defense counsel have the capability of monitoring the jury deliberations. Only by direct observation of the deliberations – by means of a two-way mirror or similar technique – will counsel and his or her client gain the maximum benefits of the jurors' thought processes, gaining important insight into the themes that were and were not effective.

Of course, this is familiar ground to attorneys experienced in the defense of high profile claims. With the benefit of hindsight, cognizant of the verdict history summarized above, we know that cases that received the most exhaustive and careful pretrial preparation may yet fail to persuade the ultimate trier of fact. As stated previously, many of the high-profile verdicts involve defense counsel of the highest caliber. If that is the case, what more can be done in the future?

The Second Opinion

It is my personal belief that the stakes are too high (and the potential risks of such magnitude) for those of us in the defense community to satisfy ourselves with adherence to the accepted techniques and strategies of the past. The continued vitality and viability of individual health care practices, professional groups and even long-established hospitals may extend only so far as the next court date. For many years, the physicians we represent have been familiar with the practice of seeking a second opinion from a well-respected consultant or specialist in their fields of practice. Assuming a client or carrier willing to bear the expense, much could be gained by having a comparable legal review completed by an experienced health care law practitioner, at a reasonable period of time in advance of a trial date.

Practitioners in law, medicine and other fields often give witness to the benefits of having a “fresh face” review the problem at hand and present independent views, unaffected by the case or event history that preceded the consultant's involvement. Indeed, is this not exactly the role a panel of jurors will fulfill? Considered in this light, it would seem there is much to be gained by inviting a knowledgeable health care attorney to conduct an independent assessment of a significant or dangerous case, and provide his recommendations, sufficiently in advance of trial to allow for appropriate consideration of his views.

Understandably, defense counsel originally retained for the case may be reluctant to share his or her work product with a potential competitor for the client's business. However, the potential use of independent consultants in this manner flows in both directions; the trial lawyer whose work is reviewed today may be the independent consultant for the next case.

It may effectively be argued that use of mock juries and mini-trial presentations serves the same purpose as independent analysis by a skilled medical malpractice attorney. Certainly the potential benefits may overlap and, if anything, the fact that a mock jury panel involves multiple independent reviewers may well provide the defendant health care provider with all the insight necessary to secure an eventual verdict in its favor.

No “mock” juror can bring to bear, however, the expertise of a trial lawyer who has successfully represented health care providers in the trial arena. Experienced counsel who have taken cases to verdict and who have established an effective rapport with jury panels, resulting in successful outcomes over a period of years, bring to each case an understanding of the trial system that's beyond the knowledge and experience of lay persons. When all efforts to resolve the difficult and dangerous case have failed, health care providers and their insurance carriers entrust their reputation and their assets to trial counsel.

Conclusion

With so much at stake, why not prepare the case in the most thorough and painstaking manner possible? Experienced defense lawyers, confident of themselves and of their abilities, should have little to fear from a trusted colleague's independent review of their work. Indeed, where the independent analysis affirms the strategy and preparation of original counsel, both that counsel and the client enjoy significant reassurance that their path is correct and all that could be done to prepare for the battle has been done.

In last month's issue, we discussed the defense problem of increasingly high med-mal verdicts. This month, we explore strategies that defendants anticipating their personal day in court should consider if they hope to buck the trend toward high jury verdicts in medical malpractice actions.

Counsel experienced in the defense of medical malpractice cases generally retain medical defense experts early in the litigation, to assist with the course of discovery and interpretation of medical records. The insight and expertise provided by such consultants is often a factor in the formulation of discovery requests. None of this is new; it is clearly standard operating procedure in the defense of medical negligence claims.

Similarly, case presentations before mock juries are a valuable teaching tool. Often, two or more mock juries will be “empanelled,” to provide the defense with an opportunity to present its case in alternate fashions, in order to identify the more effective technique and message for trial. The expense of preparing for and presenting a case to a mock jury panel is not insignificant. However, when the potential verdict is in the seven- and eight-figure range, the investment is often warranted.

If a mock jury is empanelled, and a case presented to the jury, it is imperative that defense counsel have the capability of monitoring the jury deliberations. Only by direct observation of the deliberations – by means of a two-way mirror or similar technique – will counsel and his or her client gain the maximum benefits of the jurors' thought processes, gaining important insight into the themes that were and were not effective.

Of course, this is familiar ground to attorneys experienced in the defense of high profile claims. With the benefit of hindsight, cognizant of the verdict history summarized above, we know that cases that received the most exhaustive and careful pretrial preparation may yet fail to persuade the ultimate trier of fact. As stated previously, many of the high-profile verdicts involve defense counsel of the highest caliber. If that is the case, what more can be done in the future?

The Second Opinion

It is my personal belief that the stakes are too high (and the potential risks of such magnitude) for those of us in the defense community to satisfy ourselves with adherence to the accepted techniques and strategies of the past. The continued vitality and viability of individual health care practices, professional groups and even long-established hospitals may extend only so far as the next court date. For many years, the physicians we represent have been familiar with the practice of seeking a second opinion from a well-respected consultant or specialist in their fields of practice. Assuming a client or carrier willing to bear the expense, much could be gained by having a comparable legal review completed by an experienced health care law practitioner, at a reasonable period of time in advance of a trial date.

Practitioners in law, medicine and other fields often give witness to the benefits of having a “fresh face” review the problem at hand and present independent views, unaffected by the case or event history that preceded the consultant's involvement. Indeed, is this not exactly the role a panel of jurors will fulfill? Considered in this light, it would seem there is much to be gained by inviting a knowledgeable health care attorney to conduct an independent assessment of a significant or dangerous case, and provide his recommendations, sufficiently in advance of trial to allow for appropriate consideration of his views.

Understandably, defense counsel originally retained for the case may be reluctant to share his or her work product with a potential competitor for the client's business. However, the potential use of independent consultants in this manner flows in both directions; the trial lawyer whose work is reviewed today may be the independent consultant for the next case.

It may effectively be argued that use of mock juries and mini-trial presentations serves the same purpose as independent analysis by a skilled medical malpractice attorney. Certainly the potential benefits may overlap and, if anything, the fact that a mock jury panel involves multiple independent reviewers may well provide the defendant health care provider with all the insight necessary to secure an eventual verdict in its favor.

No “mock” juror can bring to bear, however, the expertise of a trial lawyer who has successfully represented health care providers in the trial arena. Experienced counsel who have taken cases to verdict and who have established an effective rapport with jury panels, resulting in successful outcomes over a period of years, bring to each case an understanding of the trial system that's beyond the knowledge and experience of lay persons. When all efforts to resolve the difficult and dangerous case have failed, health care providers and their insurance carriers entrust their reputation and their assets to trial counsel.

Conclusion

With so much at stake, why not prepare the case in the most thorough and painstaking manner possible? Experienced defense lawyers, confident of themselves and of their abilities, should have little to fear from a trusted colleague's independent review of their work. Indeed, where the independent analysis affirms the strategy and preparation of original counsel, both that counsel and the client enjoy significant reassurance that their path is correct and all that could be done to prepare for the battle has been done.