Credibility with the Other Side is Critical

I was recently involved in a non-FTCA local malpractice case. The plaintiff’s lawyer was someone I had known and respected for a long time. I was complimented when he asked me to work on the case with him. The lawyers on the other side were from out of state and not regular players in this area. They seemed to be smart and aggressive.

Factually, the case was in some ways like many of the FTCA matters we handle. The care received by the elderly patient was clearly deficient. You didn’t need an expert to make that conclusion. It was obvious from the records. On the other hand, there were some concerns about causation. The defense had respectable arguments that the poor care had nothing to do with the death.

Over a couple of weeks we tried to settle the case. The process included mediation. Of course, in this process there was a back and forth exchange not just of numbers, but also information. At several points the other side assertively maintained that not only did they have a good causation defense, but that the actual care the patient received was “absolutely defensible” (or words to that effect). Indeed, they argued that the care was far better than what they usually see in similar cases.

By boldly taking the position that the patently lousy care the patient received was defensible, the defense attorneys undercut their much better argument as to causation issues. We got the case settled and the resolution was certainly a fair one, but the process would have been different if the other side had acknowledged the reality of the situation. I cannot speak for my colleague, but I would have been much more impressed by opposing counsel if they had done so. My thinking would have been “uh oh, these guys really know what they are doing.” Bottom line: I would have seen them as very credible and, therefore, opponents of whom I should be very wary. As it was, I pretty much saw their efforts simply as lawyer posturing. It certainly didn’t make me fear the prospect of going to trial against them.

There is an important lesson here. In our dealings with government lawyers on FTCA matters, we often have back and forth discussions about the merit and value of particular cases. I think we are generally conscious of not overselling our cases. Still, it is one of those lurking temptations that must be resisted. Our credibility with the other side is critical. It always needs to be clear that we really do know what we are doing. Being a zealous advocate for our clients does not mean ignoring reality. Any claim or lawsuit arises from a particular and unique set of facts. In a strong claim, the supportive facts outweigh the non-supportive ones, but that does not mean you shouldn’t acknowledge and address the negative facts.

Here is an example: We recently settled a couple of suicide cases involving young veterans. In both of those cases, the care was atrocious. Really, you read the record and cringe. However, almost any suicide case also has a very credible defense because predicting individual suicides is essentially impossible even with the best care. In dealing with the government, we didn’t try to pretend that our causation case was a “slam-dunk.” We acknowledged that experts could be found who would say that one really could not make a link between the poor care and the death. And we acknowledged that such evidence could be credible to a federal judge. (Remember there are no juries in FTCA cases.) However, we also hammered home the point that any such doctor would also have to acknowledge that the veteran received abysmal care – care which was intended to reduce the risk of suicide. Our strategy worked, just as it has in many other circumstances. Had we loudly proclaimed that the causation link was “absolutely clear,” the other side might well have concluded that we were just posturing and they might well have been inclined to call our “bluff.” That certainly would have been my reaction.

Sometimes clients think we aren’t being tough enough when we don’t make every point with the same high intensity. Putting myself in their shoes, that is not hard to understand. In reality, however, as their lawyers we would be doing them a disservice if we did. Credibility matters – a lot.

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