Elements of a Medical Malpractice CaseFebruary 12, 2018
What separates a good lawyer from a great lawyer?
There is, of course, no single answer. But for the purposes of this post, we want to talk about one skill in particular: the ability to think ahead.
Included is an article we wrote for the Summer, 2017 edition of the ILTLA Trial Journal that demonstrates how a forward-thinking approach can pay big dividends in a courtroom.
It’s called “It’s the Damages, Stupid: Making Mental Health Professionals Your Best Witness.”
In short, this article explains how a plaintiff’s lawyer can strengthen their case by thinking about damages early in a lawsuit, even though the temptation is to focus on liability first.
It talks specifically about testimony from mental health professionals — and how a lawyer might miss opportunities with this important class of witnesses if they aren’t thinking ahead.
Let’s start with a few definitions:
Simply stated, “damages” are money. There are two categories of such in a personal injury lawsuit:
Economic damages are losses we can prove with numbers, such as past and future medical bills, funeral expenses, and lost wages.
Non-economic damages don’t come with fixed numbers. These are things like pain, suffering, loss of a normal life, grief and loss of society.
We prove the latter with testimony, which typically consists of the plaintiff, family members, friends, and other acquaintances, such as co-workers.
But it doesn’t have to end there.
What we propose in this article may seem simple, but it can be overlooked by lawyers who aren’t able to think ahead.
Fully Define Your Damages
We start with this premise: Society — and thus, juries — place a large value on mental health.
So we, as lawyers, should not be shy about encouraging our clients to seek treatment from a mental health professional.
A gentleman whose leg is crushed in a forklift accident wouldn’t think twice about consulting a physician. In fact, he’d be considered crazy if he didn’t. We should take the same approach with any psychological harm he experiences due to that injury.
Establishing an early connection with a mental health treater is important for two reasons:
First, it can help the client heal. Second, it can help the lawsuit.
Unlike a family member or friend who testifies, a mental health professional is an objective, third-party witness who has experience connecting the dots for juries.
They can help us explain the client’s loss in all of its permutations.
And if we get them involved early enough, they can help us keep a real-time record of the client’s grief or suffering, so we have the best chance of conveying the entirety of their loss to a jury.
Our article runs through several hypotheticals to better explain these ideas.
But the most important takeaway is this: if a lawyer doesn’t think ahead, at the end of their lawsuit they may be left staring at a big, missed opportunity.
That’s the difference between good and great.