Why almost every case is won or lost before the lawsuit is filed

In the 1985 classic movie, Wall Street, the infamous Gordon Gekko gave sound advice to his protege concerning his strategy for success in business.  Gordon Gekko, quoting an ancient Chinese philosopher, told his aspiring young "Bud", that "every battle is won or lost before the battle begins".  No words could be truer, particularly when it comes to medical malpractice litigation.

Contrary to public perception fed by movies and TV about lawyers, medical malpractice lawsuits are not won at trial or closing arguments. Medical malpractice lawsuits are not won by clever motions and great depositons. Medical malpractice cases are won before the summons and complaint is ever filed.

Case selection is the key.  As a plaintiff's lawyer, I must be absolutely ruthless in case selection.  Most attorneys want to make new clients happy and leave their office with a smile.  Not me!  Frankly, I could care less whether a new client leaves my office with a smile.  I'd much rather that they leave my office with a realistic understanding concerning the likelihood of winning their case.

I begin building realistic expectations from the first meeting. I tell clients that even the best cases can be lost and that my job is to make sure that we critique every strength and weakness of the case before the lawsuit is filed.  This often involves expert reviews of the medical records by multiple physicians. Rather than accepting the first positive review of the case by a physician, we put the case through the washer with two, three or in some cases, five physician reviews.  By the time I receive a positive opinion from the third or fourth physician and each opinion is basically the same, only then are we ready to file the lawsuit.

Is this expensive?  Hell, yes.  Does it pay in the long run?  A losing medical malpractice case is a substantial expense for any lawyer.  It doesn't pay to take cases that have borderline or questionable merit (even if you can find a physician to give a positive opinion of the case).  Contrary to popular perception, malpractice insurance carriers aren't in the business to pay claims and write fat checks in questionable cases.  A catastrophic injury is not enough--you must have a clearcut and often overwhelming proof of negligence by the offending physician.

Ruthless case selection is crucial for the success of a medical malpractice lawyer.  Gordon Gekko had it right when he told his aspiring protege that "every battle is won or lost before the battle begins".  Nothing could be truer in medical malpractice litigation.