1) Getting in over you head. Don’t even think about taking a medical malpractice case unless you previously sat as “second chair” for several trials and know medical malpractice law and evidence law cold.
2) Not properly screening the case. You need to work with competent staff, ideally with nurses and doctors, to do a thorough intake, gather the records and evaluate the liability and damages. Are you willing to commit $50,000 to $100,000 to get the case properly prepared with the right experts, exhibits, and focus groups? Make sure you get all of the records. Some hospital charts only contain their records, and not those sent to them from other sources.
3) Delegating responsibility. You can have all the associates, paralegals, secretaries, and nurses work on a file, but you, as the trial attorney, must fully and completely understand and “own” every single bit of case yourself.
4) Not being able to explain your case to someone in a 10-word telegram. For example, “chest pains, goes to ER, not properly worked up, dies of heart attack on way home”. Anything more will be confusing to the jury.
5) Not understanding the medicine and the medical records. And related to this, is failing to translate the medical terms into everyday non-medical terms juries can understand.
6) Underestimating your opponent. The attorneys who defend health care providers in New Jersey are fabulous at what they do. They go from trial to trial and have a chance to hone their skills and keep up on the law. They will know every weakness in your case and in theirs. They appear before the same judges over and over and have built up a lot of good will.
7) Thinking a case will settle. In the medical malpractice arena, just about every case is deemed to be defensible. Right or wrong, this is the reality. The defense is winning about 91% of all New Jersey medical malpractice jury trials. That statistic is proof they know what they are doing.
8) Having too much technology at trial. Experts still tell us that while there is a place for it, sometimes it causes you to lose focus on what you need to do to connect personally with the jurors. You have to be credible, personable, and be a great storyteller in order to have a chance.
9) Having a client that is not likable. You cannot win a case with a client that you, your staff, and the jurors don’t like. It’s that simple. You’l know it at the first interview. You will be spending three or four years with this person and their families. You have to really get to know them to be a great advocate for their cause.
10) Failing to realize the judge is human. In most counties, the judge is given a case on very short notice. It is up to you to make certain you provide him or her with all of the material they need. Your neutral statement of the facts, the proposed open-ended voir dire questions, your motions in limine, your requests to charge, and the proposed verdict sheet cannot be boilerplate. You need to spend a tremendous amount of time getting all of this ready in a format that is easy for the judge and law clerk to follow. They may be new to these cases and don’t know Scafidi from Applegrad. Therefore, it’s up to you to gain their trust. If you don’t convince them you know what you are doing, you’re sunk for the rest of the trial