Two weeks ago, something happened to me that I had never experienced before in 33 years of practicing law. My partner, Bill Carr, and I settled a case in the middle of trial. We had been engaged in a fierce battle with a very strong adversary for four days when we received the surprise of our life: an email at 8 p.m. on Thursday evening extending an offer to settle the case.
Two weeks ago, something happened to me that I had never experienced before in 33 years of practicing law. My partner, Bill Carr, and I settled a case in the middle of trial. We had been engaged in a fierce battle with a very strong adversary for four days when we received the surprise of our life: an email at 8 p.m. on Thursday evening extending an offer to settle the case. It is somewhat of an accident that we had even checked our email as we were in the midst of preparing for the last day of trial. To say we were surprised is an understatement. Bill and I were both shaking our heads.
It is interesting that Bill and I had different views of our fourth day of trial. We had finished our evidence at about 2:00 that day after we showed the last part of our expert’s videotaped deposition. It was a good deposition for us and even though it was videotaped, it was impressive. Our expert was one of the leading spine surgeons in the world, had authored a textbook on spinal disorders, authored 15 chapters in other textbooks, and had written more than 100 articles in leading publications on spine surgery. He was on the editorial board of two of the best publications on spine surgery and had lectured all over the world. He was a professor for one of the best medical schools in the country.
We had presented his testimony by videotape because he was frankly too busy to travel to Independence for trial. After we concluded his deposition in Houston two weeks before trial, he asked me why the case had not settled. He was not an arrogant man, even though his credentials would justify such an opinion of himself, but I think his thought was that he was right and they were wrong and that this case should settle. I told him that we had made an offer, told him what the offer was and he said that it was a huge mistake for them to not accept that offer. He could not believe that they had not made some offer to settle the case.
Actually, my partner and I entered the trial thinking the same thing. It was a malpractice case and there is no such thing as a slam dunk malpractice case. The medical providers win more than 80 percent of the time in court, and so entering the courtroom on these cases is always risky. There was only one other time in my career that I had entered a trial on a malpractice case thinking the other side should settle and that case ended in a verdict for nearly $1 million for our client. While the most recent case did not have that same value, I had similar feelings as we entered the fray. We did not think the doctor had a very good explanation for what he had done.
Page 2 of 3 - A veteran lawyer told me once that if you are the one doing the explaining, you are usually losing. The challenge of a malpractice case is that usually the plaintiff has to do the explaining, because first you have to explain the medicine to laypeople, and then you have to convince nine of them that a doctor or other health care provider has done something wrong.
However, we felt in this case that the doctor had to do the explaining and we did not think his explanation was very believable. Thus, he was doing the explaining and we thought he would be doing the losing. Yet, after the fourth day of trial, Bill and I were still surprised that the case settled.
The case settled about 10 p.m. that night, but even though we settled, we had to go to court the next morning to inform the judge, and to be in the courtroom when the judge informed the jury. I was not looking forward to that moment and in fact, felt kind of guilty taking the jurors away from their normal lives for four days, and then yanking the opportunity of deciding the case from them.
It was a wonderful jury. Perhaps the most attentive jury I have ever encountered. The amazing part of the experience is that while the jurors were disappointed the case had settled and they could not render a verdict, they were all quite pleased to be part of the experience. One lady in particular raved about how the lawyers were so skilled in their use of the English language and how important words were to the process. I have often said that being a trial lawyer is a crazy profession because my livelihood depends on what comes out of the mouth of witnesses. This juror recognized that as well.
After talking to the jurors, it was evident that they were going to deliberate a long time. We had strong advocates on our side, but so did the defense. Settlements are a good thing usually for both sides because it eliminates the risk, and long deliberations.
The judge helped soften the blow when he explained to the jury before he discharged them that although they did not decide the case, we could not have reached resolution of the case without their involvement. This is so true. Even if the jury had decided this case, it was likely going to be appealed and so their attentive participation allowed us to bring finality to a situation for both the plaintiff and the defendant.
I suspect the jury accepted its role so well because of what the judge had told them during jury selection. He told them that their role in the case was critical and as they serve their country in this important way, they should think about the brave men and women who are serving in harms way around the world so we can preserve our rights, including the right to trial by jury. The jury system works. Our experience is living proof.
Page 3 of 3 - Bob Buckley is an attorney in Independence. Email him at firstname.lastname@example.org