By Gregory Haubrich
Foshee & Yaffe
You’d be surprised at how careful good personal injury lawyers are about what cases they take. In general the public thinks that we can take any person with any complaint and get them some of what our governor calls “jackpot justice”. In truth, the economics of our practice and the ethics of our profession require that we only take cases of serious injury that are objectively provable. We as plaintiff’s lawyers most often fund the expenses of our clients’ cases; otherwise they would not have access to the courts because court cases are expensive. However, if we invest in unsuccessful cases, the time and money we put into those cases will be lost.
Just a couple of examples may help. An outstanding trial lawyer here in Oklahoma City once invested $600,000.00 in a medical malpractice case — and lost. Whoa there Nellie!!! That will definitely make you check your hole cards. When I had my own law firm I had $135,000.00 of my firm’s money in a case in which the other side — a Fortune 500 company represented by Oklahoma’s largest law firm — offered my client only $15,000.00 before trial. Yes, I was checking my hole cards, because I didn’t have a whole bunch of extra $135,000.00 bills lying around. Fortunately, we won. (And by the way, my client deserved that victory because the Fortune 500 company had poisoned both him and his land and the lawyer from the tall-building law firm misrepresented the facts to the jury.)
So why do lawsuits cost so much? Three things: experts, depositions, and discovery. In this article, we’re going to talk about expert witnesses.
In the law, an expert is a person qualified by education, experience, or training to have knowledge not likely to be held by “ordinary people” — that is, jurors. Experts explain the meaning of facts and offer opinions on how those pertain to the case. Let’s use medical malpractice as an example. You think you have been hurt by the negligence of a doctor, hospital, or nursing home. The doctor failed to diagnose your husband’s cancer. The hospital failed to follow a doctor’s order. Your mom got a devastating septic bedsore from a nursing home’s failure to follow protocols such as cleansing, bathing, and turning the patient.
How do you prove the case? Through an expert: a doctor, a clinician, a nurse with experience in nursing homes. In Oklahoma, as in most states, in order to even have a case, much less win it, you must have a qualified expert witness to show the jury how the doctor, hospital, or nursing home violated the “standard of care”: what a prudent doctor, hospital, or nursing home would have done in the “same or similar circumstances.”
Easy, right? Well, no. Doctors who testify against fellow Oklahoma doctors essentially do not exist. They will line up to support each other, but if they offer opinions critical of their colleagues they are ostracized to Siberia, shunned by their profession, and no longer get the referrals that are the lifeblood of their practice.
So, if you come to me with a claim of medical malpractice, our firm will have to spend a couple thousand dollars to send your records to a “consultant” from out-of-state. If the consultant thinks you have a case, we will then have to find and hire a qualified M.D. from, say, New York or Palo Alto, to be prepared to explain to the jury why your doctor should have recognized that your husband had cancer; and another to show them his odds of survival would have been so much higher if those tests had been performed in 2012 instead of 2014; plus an economist to review your family’s financial records and testify to the “present value” of the loss of financial support of the primary breadwinner in your family. We don’t just pay the experts for their time actually working on the case; we also have to purchase their travel tickets and pay them by the hour for the time they are sleeping in the first-class cabin on the plane to and from Oklahoma City.
So, by the time we try your case to a jury in Oklahoma County — and don’t forget that 80% of all cases tried against doctors are won by the doctors, nationwide — our firm will have spent $80 – $100,000.00 preparing and trying the case. That’s a lot of investment for a 20% chance of getting a return.
Tune into Butter’s Blog next week for Part II of this series and learn more about the REAL costs behind bringing a case to trial.