Think Like a Defense Lawyer

I am extraordinarily lucky. When I was a young lawyer, I was at a very high-quality insurance defense firm. I learned how to handle files, go to court and try cases. I then did a bit of time at a very large firm. It was definitely not for me, but I was exposed to things there that I never would have seen anywhere else. Unlike doctors, lawyers don’t do formal residencies, but that is often how I have thought about my first four years as a lawyer. Looking back, I got incredible training.

I moved on and became a medical malpractice defense lawyer. In over 30 years of doing so, I went to trial in well over 100 cases throughout Virginia. I challenge anyone to be able to say they have done more trials. I certainly did not win all those trials and, in fact, some of the losses were big. Any lawyer who says that he or she has never lost a case – or, like a former colleague, claims a 95% win ratio – is simply not honest. Suffice it to say, my trial experience is extensive and that is a tremendous advantage.

In the late 90’s, while continuing our large defense practice, my firm also started handling Federal Tort Claims Act cases relating to medical malpractice at VA and military healthcare facilities. We represented plaintiffs in cases against the government. What became immediately apparent was that our defense background and experience were incredibly useful. We knew how cases could be defended – or not defended. This informed both our case selection process and our work-up of cases. My now much smaller firm has been out of the defense business for a while, and we do state law malpractice cases in Virginia in addition to our FTCA practice. However, that defense lawyer heritage is still a huge benefit.

If you are a defense lawyer, your view is fundamentally quite different than on the plaintiff’s side. You don’t pick the case. It comes to you. You have to figure out a way to attack the case the other side is making. If you’re a good defense lawyer, you develop a keen sense of what sorts of factual defenses may get traction with a jury – and you also get to know what sort of arguments have a high risk of backfiring. You know what legal defenses might work and those where it would just be a waste of time raising them.

When you scrape everything away, a defense lawyer’s mission is to attack and discredit the plaintiff’s case. You have to do it in a way that is persuasive, of course, and often that means your challenges are not head on. It’s something of a cat and mouse game. You have to know what you are doing – and you have to be good at it. You also have to be tough and not afraid to try a case, even if the odds of winning are not great. The other side always has to know that you’ll do so. No matter how well you construct a defense, if the other side knows you are likely to cave in the end, your brilliance will not count for much.

Obviously, if you are a defense lawyer you need to think like one – and train yourself to be an excellent practitioner. However, plaintiffs’ lawyers need to adopt a similar mindset. When evaluating a potential case or working up a matter, you always need to be thinking about how it may be challenged. That’s not always easy to do, especially if you don’t have extensive experience on the other side.

My observation is that many plaintiffs’ lawyers grossly over-assess some risks and incorrectly underrate others. Let me give a couple of examples:

• Many plaintiffs’ lawyers have an inordinate fear of the “empty chair defense.” They worry that a defendant will blame other doctors who are not in the case. Even if one is able to do this legally – which at least in Virginia is a dubious proposition – it’s almost never a good defense. Juries hate that sort of finger pointing. However, having multiple defendants with various degrees of culpability dilutes a case hugely and creates confusion – which is never good for the plaintiff.

• On the other hand, many plaintiffs’ lawyers underrate attacks on proximate cause, especially if the issues about the original care are juicy and there are big damages. I have had good experts essentially disconnect negligence and causation – and good plaintiffs’ lawyers who never saw it coming.

As noted above, I am so fortunate to have had the experiences I have had. The skills I honed as a defense lawyer, I now use for the benefit of injured patients and their families. Even so, all good lawyers need to always be thinking about how the other side may attack their case. That is super critical when you are on the plaintiffs’ side, meaning the burden of proof is on you.

Even if you are a plaintiffs’ lawyer, think like a defense lawyer. Your clients will be far better served if you do.