As a trial lawyer with close to thirty years experience, I am very comfortable in the courtroom. My skill and experience in medical malpractice litigation has produced overwhelmingly successful results for my clients.
The courtroom, however, can be an uncomfortable place for the litigants themselves. Trial can reopen the emotional wound of the malpractice event and resulting injury. Also, the outcome of any trial is unpredictable, despite the best planning and preparation. Given that the only result achievable through the trial process is monetary compensation, it’s not surprising that settlement negotiations, which avoid a trial, have now become a routine and valuable part of the process.
Indeed, courts across the country recognize that the vast majority of malpractice cases (approaching 95%) settle out of court. This experience has led to mandatory Alternative Dispute Resolution for all malpractice cases. Simply put, this type of resolution (ADR) is the courts’ way of ensuring that the parties meet and conduct meaningful settlement negotiations as early in the process as possible.
In Maryland and the District of Columbia, the courts will appoint a neutral mediator or allow parties to select their own, to preside over settlement negotiations. The mediator may be a current sitting judge (not assigned to the case), a retired judge or a lawyer with years of experience in medical malpractice who is equipped to understand the medical and legal issues in the case.
ADR is not fancy. Prior to the actual mediation, the lawyers for each side submit confidential mediation statements describing their case. The parties and their lawyers then meet with the mediator in an informal setting. During the actual mediation, the parties are separated into different rooms and the mediator goes back and forth, working with both sides to bring the plaintiffs’ settlement demand and the defendants’ settlement offers closer.
Ultimately, mediation reaches a point where the defendant has offered the maximum amount of money it will voluntarily pay, which then gives the plaintiff the ultimate decision: settle or proceed to trial.
I always tell my clients who face this decision that one of four things will happen in a jury trial:
- You will win more than the settlement offer;
- You will win exactly the amount that’s been offered;
- You will win but win less than the offer; or
- You will lose and get nothing.
We routinely advise our clients as to when a settlement offer is reasonable or unreasonable, understanding that the final decision to ultimately accept or reject any offer belongs to the client alone.
Just as our firm has been eminently successful in the courtroom with obtaining verdicts for our clients, we are also successful in the ADR process. Due to our skill, experience and reputation, we have developed an ADR protocol with the area’s largest hospitals and malpractice insurers. This protocol makes early resolution of our clients’ cases possible, sometimes before we actually file suit, thereby obtaining a favorable resolution for our clients in a shorter period of time and with less associated expense.
Schochor, Federico and Staton offers our clients the best of both worlds: skill and experience at the ADR level where our clients have the opportunity to decide the outcome of their own case and conclude it through settlement, as well as superior trial advocacy in those cases which require resolution by a jury verdict.