Swift Currie McGhee & Hiers, personal injury defense group, (seated, from left) Drew Timmons, Pamela Lee, Terry Brantley and Eleanor Jolley, (back row, from left) Ashley Alfonso, Roger Harris, Nelofar Agharahimi, Lee Clayton, Jennifer Nichols and Melissa Segel. (Photo: John Disney/ALM)

Swift Currie McGhee & Hiers won some impressive cases in 2018, including a medical malpractice case where the plaintiff sought $2 million. The jury issued a defense verdict that was affirmed at the state Court of Appeals, and the state Supreme Court declined to hear the appeal.

The firm also won summary judgment for a gas station owner sued by a man who was shot in its parking lot. The win came as a result of a police officer's conclusion the shot did not come from the gas station property.

In another case, the firm's client was granted a directed verdict after the plaintiff rested her case-in-chief. Then the firm beat the plaintiff's efforts to get a trial transcript after twice saying it didn't want a court reporter to make one.

The firm's managing partner, Terry Brantley, answered the following questions.

Assuming when a case goes to trial that both sides think they have a good chance of prevailing on the law and the facts, what can you do to improve the odds for your client?

Without question—prepare, prepare, and prepare some more. Time and again, for our clients, the best results are achieved when we are prepared for trial. In our view, the trial begins as soon as the file comes in the office. Everything we do—from responsive pleadings, discovery, depositions to dispositive motions, motions-in-limine and Daubert challenges—is designed to gain a strategic and competitive advantage at trial.

Most cases settle before trial, but when the decision is made to go to trial, we are ready to go. Juries are unpredictable, but the best way to manage the uncertainty and unpredictability of a trial is to anticipate and prepare. Regardless of the result, no one will tell us we were not prepared.

How early in a case can you tell if a case will go to trial or settle?

Each case is different, and each case has its own set of concerns. Many come with their own set of surprises. Most of the cases that come our way have some element of concern beyond breach of duty, liability, causation and damages. Often, the client or insurance carrier has conducted a thorough background investigation and case analysis, so the case was not settled at the claim stage for a reason, such as a staged accident, exaggerated injury or medical fraud. For this reason, we prepare each and every case with a thorough and vigorous defense and expect to go to trial.

However, there are some cases where it is in the best interests of the client, for a plethora of potential reasons, to settle the case early. Additionally, depending on the presuit or early suit posture of the case and the apparent reasonableness of opposing counsel on a particular claim, it may be apparent that a mutually beneficial compromise can be reached prior to the expenses and time of trial. We can usually spot those pretty quickly.

However, sometimes there are surprises that either diminish the value of plaintiff's claims or run contrary to our planned defense that change the value either in a positive or negative way and affect the likelihood of resolution.

We have tried cases that we were sure would settle. We have settled cases we were sure would try. No one has a crystal ball, but we prepare each case with the understanding that we could be trying this case.

One of your wins came in a premises liability case in which someone was shot in the head. How does a criminal investigation aspect complicate—or help—your role in civil litigation?

An active criminal investigation can be an incredibly complicating factor. For starters, it puts much of the investigation on lockdown. It is virtually impossible to obtain the entire police file, prosecutor's file or court file while there is an active investigation. Witnesses may clam up, either through fear or through the fatigue of being questioned by the police, the prosecution, the criminal defense, the plaintiff's attorney and the defense attorneys. Additionally, and perhaps most complicating, is that the statute of limitations can be extended during a criminal investigation and criminal charges which leads to uncertainty for the clients.