Generation J.D.

This past year was quite a memorable year for me.  One of the most significant events was that I went from being a med mal defense lawyer back to being a Plaintiffs’ med mal lawyer.

Because the whole defense lawyer vs. Plaintiffs’ lawyer thing can be so polarizing when it comes to medical malpractice work (i.e., once you’re on one side you stay on that side), I cherish that I have now actively participated on both sides of the table.  Below you will find some commentary about how the two sides really differ:

1. The Burden of Proof: This might be the best part about being a defense lawyer.  Remember that in a medical malpractice case (or any tort case for that matter) the Plaintiff has the burden of proof on all four elements (i.e., duty, breach, causation and damages) in order to prevail at trial.  As a defense lawyer, it’s nice to know that you only have to knock out one element in order to win.  In March, I successfully had a legal malpractice case thrown out in Montgomery County on the basis that my client had no duty to do what the Plaintiff was alleging.  It was a sweet victory.  And you just don’t get those sorts of victories on the Plaintiffs’ side.

2. Winning and Losing: As a defense lawyer, your definitions of “winning” and “losing” take on a whole new meaning.  The fact remains that the overwhelming majority of civil suits settle before trial.  Most of the time, Plaintiffs’ lawyers view a settlement as a win.  Interestingly, most defense lawyers consider the right settlement a win too.  In my mind, however, the only true “win” on the defense side is a defense verdict or prevailing on a dispositive motion.

3. The Tripartite Relationship: With defense work you do not really have a traditional one-on-one attorney-client relationship.  Instead, you have what is called the “tripartite relationship.”  The three parties that make up the tripartite relationship are the attorney, the insurer and the insured.  Basically, the insurer hires the attorney to represent the insured, with the insurer paying the legal bills and sort of calling all the shots.  For medical malpractice cases, the insurance company hires the defense lawyer to represent the doctor, hospital or other health care professional.  Personally, I found the tripartite relationship to be one of the most undesirable aspects of doing defense work.  Oftentimes the insured, who is supposedly your “true” client, does not agree with what the insurer wants to do and this can put you directly in the middle of a potential conflict of interest.  Not fun.  In this regard, Plaintiffs’ work is much easier.

4. The Billable Hour:  As opposed to Plaintiffs’ lawyers who work on a contingency basis, and who do not need to typically keep track of their time, defense lawyers bill by the hour.  Keeping your time is a work of art.  It is also a total pain in the neck.  Moreover, the insurance companies who pay defense lawyer legal fees do not always agree with how something has been billed and disputes can arise over payment.

5. Reporting:  Most insurance companies demand that the defense lawyers representing their insureds file timely reports on the status of each case.  In theory, this is great.  Ultimately, I think reporting monopolizes the attorney’s time and it comes at the expense of actual lawyering.  I would spend countless hours working on reports.  All the while, however, I was dreaming about writing some lengthy motion or developing a crafty legal argument.     

6. Your Cases Choose You: As a Plaintiffs’ lawyer you have the luxury of deciding what cases to accept and what cases to reject.  In a perfect world, a Plaintiffs’ lawyer only takes “good” cases.  On the defense side, your cases choose you.  If a doctor gets sued, and the case is assigned to you, that’s that.  You can’t refuse the case.  In the end, this was a primary reason why I could not do defense work, and why I switched back to the Plaintiffs’ side.  I had a very hard time attempting to “defend” doctors, who, in my mind, had obviously committed malpractice (which contrary to popular opinion, happens all the time).

It’s an interesting dichotomy – defense lawyer vs. Plaintiffs’ lawyer.  Yet, without one, you wouldn’t have the other.  Ahhh…the circle of life.

Happy New Year, everyone!

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