From time to time I give advice to plaintiff  lawyer friends regarding their cases. (sometimes when I’m  not asked) I thought I share some general responses I’ve given recently as way to stimulate your own ideas about these issues. Here they are.

A lawyer who had a medical malpractice case against a midwife for shoulder injuries at birth asked a group  of plaintiff  lawyers what we  thought of his chances and the damages after he outlined the facts to us. Here were my thoughts.

I don’t have the answers but I do have some gut reactions for what they are worth:

I think the best way to get answers to your questions is a “silent” focus study:   Short video without sound along with a time line plus key clinical records.  This would be presented without argument or supporting facts. Just the basic fact pattern without details and without any lawyer argument. It should be given to a group in the county where the trial will take place after which you give them just your  questions in writing and before discussion. That would be a whole lot more reliable than asking a biased group of plaintiff lawyers for their views.

I also think you should consider progression drawings where you show child with this injury from birth now and into old age. The  cute little baby has a different view  than  the adult and elderly person he or  she becomes with this injury.

I think a midwife  case like this one has two opposite poles – negative and positive. On the one hand,  a good number of people have the idea it is risky to not have a physician deliver a child and a midwife is seen as less than competent. On the other hand, those same people will tend to blame parents who they see put themselves at risk by going to a midwife instead of an OB at a hospital. The more you paint the midwife incompetent the more you generate defensive attribution “I would never have done that…”  It requires excusing parent’s selection and trust in midwife while proving case vs midwife. You need  to do both.

I think these cases require an open discussion approach in voir dire about key issues such as using midwifes, the usual malpractice issues and about this kind of injury rather than a closed end demographic inquiry.

I also believe the best chance of winning these kinds of cases is proof of a gross betrayal of trust. Proof the parents were deceived into putting their trust in an incompetent person who was motivated by money, pride or other wrong motives for her actions is your goal. That’s because medical mistakes will be forgiven, even if you prove they were mistakes, by jurors in this county and most anywhere else. Betrayal of trust for wrong motives will be punished. The theme should be reasons that were a lot more serious than medical mistake or negligence in order to win.

As to the damages, the obvious problem is this is a suit only against the individual midwife and there will be a perception of a lack of deep pockets so that unless the jury wants to punish for serious breaches of trust they aren’t motivated to pay more than the bills. Only juror anger will drive a large verdict against a single midwife defendant.\

Later the lawyer  in the case was offered a settlement by the insurance company. Here’s my advice in that regard.

Well, that’s more than a nuisance offer so they do have concerns. One wild card is the negotiation process. Our best settlements are made the closer we get to trial, but always balancing whether there is a risk of withdrawal of the offer. My own reaction  at this stage of the case was to take a hard stand sometimes even into trial because my gut was they were testing me and clients.

Beware of self-righteous and inexperienced court appointed guardians who sometimes get involved in this process.  They often try to interfere in the negotiation process  when they lack knowledge and experience to do so.

As to the offer, we both know the evaluation process. The questions are: What are odds of winning both liability and causation? What is likely verdict in that county if case goes well? Comparing the two results in a settlement range. On a practical level one must also consider: What are the cost advanced and liens due others considered with fees resulting in what net amount to client? What referral or other fees owed which determine net to lawyer?

Keep in mind in a case like this with a minor  as plaintiff reduction of usual  40% malpractice  fee is  likely, either voluntarily or by court involvement when you ask for approval of minor’s case.

As to liability, I don’t have a good feel on this but have the idea the defense is weak on its causation defense. As I’ve indicated before, the liability and damages will be driven by the degree to which the jury is upset by the conduct of defendant. Really angry jurors increases both liability and damages by a significant amount. Having them less upset but upset with the midwife’s  conduct still helps liability and causation but usually means a compromise verdict amount. If they see this at most as only a medical mistake you will probably lose the case or get a much compromised verdict.

My view was to always consider the settlement offer from the viewpoint of the client. Can the client afford to gamble? Will the net amount make a difference to them or is the amount small enough the gamble isn’t very large? Is the amount offered small enough that it dictates going to trial even if risk involved? Or is the case risky enough even a less than expected settlement is better for the client. With minors this decision is always more difficult. Whatever you decide be sure to cover yourself with fully informed clients confirmed in writing.

In another case, the lawyer had an employment suit in federal court where the client had been induced to retire early, but without disclosing that remaining longer would result in the right to a much larger termination package. My thoughts  were these:

You have two polar points in your case. One good and the other negative.  The good point is the financial motive of the employer to cheat your client and the other is the fact your client was “dumb enough” to be taken in by it.

You need to inoculate jury for idea client got what they deserved because they were negligent in not learning what they would have received under the rules before agreeing to retire early for the bonus they offered. Or, as it is technically called “defensive attribution” which is the idea by the juror:  “That would never have happened to me. I would have …….” Obviously, this always means starting the story with the defendant and the defendant’s actions, not the your client’s story.  Only after a thorough story about what a thief defendant is do you say anything about client’s actions and then you explain how they were taken in.

I would adopt a theme for this case and follow it from voir dire to argument based upon dishonesty of the employer.  If you had voir dire the questions I would ask open ended questions about their feelings regarding truth and honesty  like what they would want to teach children about honesty, their  feelings about people who steal etc.

And in opening I would  repeat the theme with something like:  “this is case is all about whether an employer can plot a way to cheat an employee out of money rightfully theirs and get away with it.”  Every witness should involve questions around the theme. I’d also think up some “rules” questions you don’t care what the answer might me. For  example:   “In your business experience  is it ever OK for an employer to deliberately figure out to cheat an employee  out  of what  is rightfully due them in compensation?”

Instead of spending time covering details like contract provisions, dates, and  the like,  I  would never leave that main theme. I would make the theme the beginning, middle and end of every witness doing only a minimum on legal proof to avoid dismissal.  I believe you adopt that point as virtually the sole point in your case and throughout the case. I don’t think you can be timid about this. It  doesn’t work to sort of mention it and then be intimidated by the strong accusation involved. I think it has to be a courageous “in your face theme of cheating an employee” if  it  is going to create the outrage you want from the jury.

The good news is that when the motive for wrongful actions in a trial is obtaining money dishonestly that causes one of the strongest negative reactions which is actually Biblical: “Thou shalt not steal.”  It is a commandment of God and we learned it in childhood. It is a universal moral rule. In addition, we have a  huge emotional trigger here because they cheated this person out of money that was rightfully his.

I think you have a chance for outrage here with major betrayal of trust and real anger in response calling for severe punishment. Capitalize on it is my suggestion.


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