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 benefits
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 10 to 60 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.