Although my personal law practice is now almost entirely devoted to representing veterans and military families, for over 30 years I was a defense lawyer. I represented doctors and other healthcare providers all around the Commonwealth of Virginia. Over the years I went to trial in at least 100 malpractice cases, not a small number in that business. As a defense lawyer, you take the facts of a case as they are given to you and sometimes those facts are hard to defend. The very best lawyer skills usually don’t change the import of “bad facts.” Conversely, sometimes even bad lawyers don’t change the potential impact of “good facts.” Once when I was a young lawyer I made some nasty comment about the ineptitude of my opposing counsel. My boss – who to this day I would say is the best lawyer I have ever worked with – drily noted that juries have a “funny way” of forgiving plaintiffs for their poor choice of lawyers. I always try to remember that point, but like most lawyers, I have a rather healthy ego so I have sometimes had to relearn the lesson.
Lawyers do matter, however, and I was reminded of that recently. I was consulted concerning a matter which was a classic example of a case with truly awful facts. A relatively young woman died following what should have been a minor out-patient procedure. One doctor was clearly culpable – egregiously so, if fact – but the other defendants were fairly innocent. The lawyer representing the family apparently had no idea of how to handle a malpractice case. The matter flopped around for years. The court was patient with the lawyer, giving breaks that were really undeserved. Along the way, the lawyer and the family settled with the guilty doctor, but they took an amount that far under the value of the case. In fact, I would say it was given away. Eventually the case went to trial against the remaining defendants. Without even letting the jury decide, the judge threw it out as to the other doctors. That almost never happens in state court in Virginia. The family’s lawyer simply had not connected the dots. While the outcome was good for the innocent doctors – and there was no injustice in that – the family was deprived of their opportunity for a better resolution. Having extensive experience in these matters, I feel certain that if the case had been handled appropriately the family probably could have gotten a better settlement, meaning significantly more money. In other words, the guilty party likely would have ended up paying a lot more.
The Federal Tort Claims Act medical malpractice cases we handle for veterans and military families do not involve jury trials. If a case goes to trial, a Federal judge is the “trier of facts.” In almost all regards, Federal court cases are very different than ones in state court. However, it still matters that the lawyer representing a veteran or military family know what he or she is doing. It might matter more because there is no potentially “forgiving” inclination of a jury comprised of regular people who are instructed to use their “common sense” in evaluating a case. Federal judges are not usually noted for being lenient or forgiving – and that is an understatement.
Experience matters. It matters a lot. Law is a business of judgment. Without experience, one does not develop judgment. As good lawyers get more and more experience their judgment gets better. If you have a medical malpractice case involving a VA or military healthcare provider you need lawyers who have extensive experience and know how to exercise the judgment that grows from such experience. A lawyer may be very smart and very well intentioned, but if he or she does not have the necessary experience and judgment to handle a medical malpractice case – and medical malpractice cases can be truly complicated ones – then very often it is the client who ends up suffering the consequences.
Even having the best lawyers does not guarantee a case will always turn out well, but the right lawyers mean you have a far better chance of a good outcome. At RawlsMcNelis we have wide experience and we have judgment, but in the end the only absolute promise we can give a client is that we will do our best – and we will.