8.2 Strategies and Tactics

• Library: Medical Malpractice Law in Virginia (Virginia CLE) (2017 Ed.)

8.2 STRATEGIES AND TACTICS

8.201 Plaintiff's Perspective.

A. In General. Very few medical negligence cases settle as the result of informal discussions with the claims adjuster or defense counsel before the filing of the suit and formal discovery. Medical negligence cases are complicated by their very nature. Moreover, the adjuster knows that he or she will almost always be able to find a physician expert willing to come to the aid of the defendant and testify that either the standard of care was not breached or that, if breached, the breach caused no harm. The adjuster also knows how difficult it is for many attorneys representing plaintiffs to obtain credible expert testimony. Therefore, the claims adjuster is typically not interested in resolving claims early in the process and sometimes will not enter into any negotiations even in the most obvious claims until the plaintiff's experts on the standard of care and causation have been identified and perhaps even been deposed.

B. Assessing the Value of the Case. Before beginning settlement negotiations, counsel should determine the upper and lower limits of a possible settlement. The range may be wide, because many factors can affect liability and damages.

While there is no substitute for personal experience, even seasoned lawyers can benefit from the counsel of others. It is a good idea to use other experienced attorneys as "sounding boards." In cases with the potential for large jury awards, a lawyer may conduct a mock trial with a "ghost" jury to determine the value of the case.

Counsel may also locate published records of awards and settlements as sources of information, including the American Association of Justice's Professional Negligence Law Reporter, Jury Verdict Review & Analysis, LexisNexis's Verdict & Settlement Analyzer, Westlaw's VerdictSearch, and Virginia Lawyers Weekly's Verdicts & Settlements. However, such sources of national information are minimally relevant to the value of cases heard by Virginia juries. There is a searchable database related to Virginia verdicts and settlements in Virginia Lawyers Weekly.

C. Listening to the Adversary. Counsel may learn a lot about the strengths and weaknesses of the case by listening carefully to the opponent. For instance, the plaintiff may enter negotiations aware of a potential weakness in the case, but discussions with defense counsel may indicate

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that the defense is unaware of the problem. The plaintiff's attorney can then take a firmer position in negotiations.

The reverse, however, may also be true. Defendant's counsel may identify a flaw in the plaintiff's case. Perhaps the plaintiff has a history of an injury of which plaintiff's counsel is not aware...