Defending a medical malpractice case (or any other technical matter) at trial is a time-consuming, expensive, and complicated endeavor. For many reasons, it should not have to be done twice! It is therefore essential for defense counsel to ensure that the first trial of the case is a fair one, so as to avoid the cost and uncertainty of a retrial. While many attorneys are acutely aware of what must be done to preserve issues for appeal, the focus of this column is on what can be done to prevent the need for an appeal.
Regardless of counsel’s level of preparedness, the adequacy of fact and expert witnesses, and the existence of strong arguments favoring the defense, there are factors at trial that are not entirely within the control of defense counsel—specifically, the conduct of the opposing attorneys and the trial judge—even when what they are about to do is completely wrong. Is your client better served by simply protecting the record and letting errors be made, or taking a “proactive” approach to preventing error and securing a sustainable result? The answer should be obvious.
Opposing Counsel
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