Should Trying a Complex Malpractice Case be Fun?

August 16, 2011
By: Brewster Rawls

Over twenty years ago I had just started into the business of defending doctors in malpractice cases. One of my early trials was in a small town in Southside Virginia.  I represented a surgeon and the anesthesiologist was represented by a much older lawyer – a man the age of my father and, like my father, a World War II veteran.   The case was a contentious one, the plaintiff’s lawyer a tough and often unpleasant character. 

We were in the third day of trial and the poor doctors had been beaten up pretty hard by this point.  All they had heard about was what lousy physicians they were and the horrible injuries they had caused the plaintiff.  From the lawyer perspective the case had not gone poorly.  We had scored some points on the plaintiff’s experts and there had been no real surprises. The jury seemed to be unimpressed with the plaintiff’s case.

In the middle of the third day, the court adjourned for lunch and the four of us went out. My fellow lawyer was a man who wanted meat with his meal, preferably fried and on a bun, so we all ended up at Hardees.  (I have since reformed my personal eating habits.)  The doctors were sitting there, really sort of pale and dejected looking. They were barely eating.  Holding a french fry and seeming to contemplate it, the other lawyer looked around at the rest of us and commented that our trial was going well, very well in fact.  I agreed and the doctors kind of shrugged.  He then looked at me, smiled and said loudly:  “Brewster, can you believe we get paid for having this much fun?”  The doctors almost gagged and I was fearful that one or both would lose what little they had eaten.  This trial was plainly not their idea of a good time. 

No.  For any doctor a malpractice case is anything but fun.  Being accused of hurting or killing your patient, which is the gist of all malpractice cases, is a painful accusation.  It cuts to the quick for almost every doctor I have ever represented.  Trials are hard and most doctors take the attacks upon them quite personally.

But for a trial lawyer – at least for one who truly likes trying cases – trials are fun.  That is not to say that trying a case does not involve huge amounts of stress and the volume of work required in a short time can be staggering.  However, as I see it a trial is the absolute culmination of what we do.  The intense focus and constant judgment calls shut out almost all the other mundane issues of life and law practice.  If a lawyer does not look forward to doing this – does not relish the challenge of mental combat – then he or she should probably do something else for a living.  And a doctor represented by such a lawyer is simply not getting the full measure of what he or she needs to get through this difficult process. 

Maybe it is like that Mars and Venus thing.  Doctors and lawyers just look at the world differently.  Yet, crazy as the notion may seem to a scientifically trained and highly educated physician, that professional wants and needs an attorney who is, above all, passionate about defending them. Of course, you need a lawyer who is smart, well trained and experienced, but, yes, that doctor also needs a lawyer who thinks a trial is “fun.”