If I were the King of Malpractice Litigation Land - an absolute monarch, that is - some of my edicts would include:
* No caps.
* No pre-filing review or certification rules.
* Venue would only be the place of the harm
* Defendants would be able choose their own counsel. Of course, their lawyers would have to be willing to accept an insurance company's reasonable billing parameters. This way, defense lawyers (hopefully) would be brought back to understanding that their real client is the doctor, not the insurance company
* Trials must be set within a year of answers being filed. Too busy? Decline the case.
* Each side would be bound by very broad automatic (and continuing) disclosure requirements. In essence, neither side would need to send "routine" interrogatories and document requests. Penalties for non-compliance would be stiff.
* Testifying experts would need to be identified as their opinions become available and would be included in the disclosure requirements above. The federal rule disclosure requirements would become even more specific.
* No expert depositions
* All expert opinions would need to be identified not later than 120 days before trial for plaintiffs and 90 days.
* Each side gets one expert per specialty/issue.
* Each side could take five party/fact witness depositions of no more than two hours each. Unless all concerned are located in the same place, depositions would be done remotely. The only objections would be as to privilege.
* If a party brings a dispositive motion and does not prevail, that party would pay the other side's fees and costs for defending the motion.
* Either side could make offers of judgment at any time up to 10 days before trial.
* Before trial, all exhibits would be determined and objections addressed. Think of a federal final pre-trial conference.
* No collateral source rule. Juries would know what has been paid and who paid it. They would also be told about what needs to be paid back if they make an award. I have a logic for this radical notion which I might share another time, but my basic feeling is that we should eliminate as many fictions as we can and trust the common sense of juries - who know that the plaintiff is not on the hook for that $900,000 medical bill and Medicare didn't pay that much anyway.
* Juries would be selected at random. Parties would know the jurors’ identities the morning of trial. Voir dire would be limited to bias. Each side would get a few peremptory strikes, but jury selection should take no more than a couple of hours (like we do in Virginia)
In fairness to me, not everything here is plaintiff friendly. My thinking is to try to reduce costs which would make the process more accessible and fairer. I also think transparency is good - and all this sort of fits with me being a small d democrat.
Regardless, to the probable relief of all, I will never be King.
#lawpractice #triallawyer #lawyerlife
Managing Member
2 周Great to be with this excellent group of lawyers and friends.