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Surviving a Trial

The more a party knows about what is happening at the trial, the easier it is to stay intellectually involved. An informed client, particularly a defendant in a medical malpractice case, is also an asset to the attorney. The client can assist with the review and organization of records, the evaluation of witnesses, the analysis of testimony, and other tasks that require special knowledge of medicine or the facts of the case. In addition to the advantage that this gives the physician's attorney, it reduces the anxiety associated with litigation by reducing the uncertainty.

Despite the salutary value of becoming a partner in their litigation, few physicians involve themselves in the preparation of their cases. There are several reasons for this lack of involvement. If the attorney is being paid by the insurance company, the physician has no short-term financial incentive to assist in the case. The attorney will hire the necessary personnel to prepare the case and bill the insurance carrier. Even when physicians are paying their own legal bills, it is unusual for an attorney to explain the potential savings that might accrue if the client assists in the case.

Attorneys cannot completely control the progress of a case through the courts. For example, an attorney may work diligently at setting the depositions in a case. If all the witnesses are available, the case can proceed; if a witness is not available, it may delay the case for months. Whenever an attorney files a motion with the court requesting action from opposing counsel, the opposing counsel has ten to sixty days to reply. Ideally for the client, the attorney will push the case forward at every opportunity. The reality of law practice is that attorneys work on so many cases simultaneously that they cannot push every one forward. This differential attention helps level out the work flow in the attorney's office, but it slows the resolution of each case. In the worst situation, the attorney becomes reactive, only responding to actions by the court or opposing counsel. If opposing counsel on the case is also in a reactive mode, the case can languish for years.

All attorneys share the problem of getting good expert witnesses and help with the preparation of cases. Even when experts are available, they are expensive and time-consuming to deal with. Few clients, insurance companies included, are willing to hire an expert witness to do more than testify in a case. Attorneys in medical malpractice cases often get by with the help of nurses and their own expertise. But even attorneys with medical degrees find that there is not enough time to be both a good lawyer and a good doctor.


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