A candid defense attorney once described a medical malpractice case as an
annuity, bearing interest above the prevailing rate. The longer a file is open,
the longer the law firm can draw that interest. Every few months additional
court papers can be filed. Client reports need to be done on a regular basis.
Each piece of paper and court appearance that the defense attorney can
generate, or force the plaintiff’s attorney to generate, results in substantial
fees. This approach is usually described as being “tough” on the plaintiff. Being
tough usually means forcing court appearances and motion practice rather
than coming to agreement.
Most malpractice lawsuits settle before a final jury verdict. Unlike attorneys
who defend criminals, malpractice defense attorneys have an incentive not to
cooperate with the plaintiff’s attorney in reaching a settlement. Cases are
often settled at the courthouse door because that is the longest the defense
can delay before running the risk of a trial. Defense attorneys are risk adverse;
they would rather settle a case than run any substantial chance of losing the
case. This is related to the public relations aspects of litigation. A successful
defense of a malpractice lawsuit is not news, but a $1 million verdict will
attract publicity. A case that is settled is not lost and usually does not generate
adverse publicity. From an earnings perspective, the ideal defense case is one
in which the defendant was negligent enough to justify settling the case but
careful enough to justify delaying that settlement to the bitter end.