Attorney Hefferan talks Medical Malpractice with Attorney James Nosich on “First Off, Let’s Kill All The Lawyers”

On Behalf of | Jun 9, 2021 | Podcasts

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Welcome to the first episode of The first thing we do is kill all the lawyers. And it’s an often misquoted Shakespeare quote, but it’s funny, you know, lawyers, it’s fun that to try to say, no, it’s actually a positive thing about lawyers. Well, it wasn’t if you look at it when Shakespeare wrote it in 1598, he was taking shots at lawyers. And, and that’s something that has gone on since. So that’s one of the reasons I figured I’d start this broadcast. I’m David Heffernan. I’ve been practicing personal injury law here in South Florida for close to 30 years. I’m also an adjunct faculty over at the University of Miami, and I practice with a good friend of mine and, and my partner from law school, under the firm of Kaire & Heffernan. And the goal behind putting this whole broadcast together was

to bring other lawyers in. So figure out maybe we shouldn’t kill all of them. But maybe just a few, because there are some out there still, most of them, but there’s a few that haven’t and to bring other lawyers in talk about different aspects of law, types of law, all across the board, various types, maybe some trending topics in law to get into what’s going on, and maybe educate the people that listen about when they might need a lawyer when they want some things they might be able to do on their own.

And my first guest is was an easy choice. He’s a good friend. He’s a great lawyer. I’ve had cases against him. I’ve had cases with him. I’ve consulted on cases with him. And he’s also one of the few lawyers that I actually see eye to eye with, and that’s not philosophic or anything else. It’s just because he’s about six, five. So

my good friend Jim nosaj, founding partner of the law firm knows that Jim ganz Jim, how are you? Great, Dave. Good morning. Good morning. Everything’s fantastic. All right. So you and I have a lot of similarities, because I know you’ve also been practicing in South Florida for just about 30 years. But you’re not a South Florida guy. So tell me how a kid from Chicago winds up at the University of Miami. Very easy. 1978 and 79 were the major blizzards in Chicago. So I came to the University of Miami. suntan you that time, I picked up two majors, one in geology and one in marine science. And eventually, that developed into going to law school

and studying more in terms of the medicine because I was pretty good at science and ended up in medical malpractice for the last 30 years. So we got to talk about that because we do share some things. So you took geology, I took a course called rocks for jocks, I think it was similar, very similar. But I also it’s funny because I started out I wanted to go into Marine Science and I got recruited and went there to play football, obviously. And one of the things I rapidly learned that studying marine science, and trying to practice and play football under Coach elenberger was a little difficult to do. So I was about one semester into Marine Science when I decided to switch to communications. While it was way more difficult than I thought it would ever be. Everybody likes marine biology think you’re going to be doing a lot of stuff in the ocean. But there’s a lot of math and science behind it. And a lot of work behind it and some good field camps and steel studies, but mostly a lot of hard work, which eventually I had to do a field camp I picked

in terms of geology and went to the mountains, the Blue Ridge Mountains. And they told me how to climb this giant mountain to go click on a rock with a hammer and I go near this isn’t for me. So I pulled out of that and ended up at Liberty Mutual Insurance Company in their safety consultant.

department and went to law school at night at the University of Miami and then developed into personal injury, mostly medical malpractice. So you climb mountains, you went into the ocean, and that drove you into the practice of law and drove into the practice of law does doesn’t sound that miserable. But it apparently was that miserable might be it might be if it got into the practice of law. 100% agree 100% agree. All right. Well, let’s talk about your practice. Because Because you did really and you have over over the last 30 years, carved out a niche of being somebody who really understands the nuances and the technicalities, medical malpractice is a is a whole different animal in and of itself. So what was the appeal there and kind of how did that how did that whole practice develop? Sure. And as you know, because you’re in that small little clinic of medical Malpractice Lawyers, it’s a highly specialized area. There’s a small group of highly specialized lawyers doing it.

I think what happened was I started with the firm we started doing medical malpractice was on the defense side. And my partner and I or my boss at the time broke off and

was almost 27 years ago. And we’ve had our own law firm, since that time doing representing doctors and hospitals.

My current partner Mark ganz joined us about 20 years ago, and the older partner retired and Mark, and I kept the thing going. But about two years ago, we decided to move over to representing the patients, we think we’re a benefit to the patient, since we know everything on the defense side. And we try to take only those cases that have a lot, a lot of marriages, you know, they’re very tough to prosecute. And in case selection, you want to make sure you have a

client that has been wrongly injured and

has significant damages, and try to resolve those cases for them. So we throw the the phrase back and forth Medical Malpractice and everything else, but but put it in layman’s terms, what is what does it mean? You know, because we get calls a lot of times, and and I always try to distinguish two people because there’s bad medicine. And that happens. And sometimes sometimes people are just angry. It’s a lack of communication or other things. But what rises to the level of of a medical malpractice case? Well, first, I think it’s interesting, because I think a lot of lack of communication is what causes a lot of the problems with patients and their frustration. On the defense side, I’ve been involved in probably representing 1000s 1000s of doctors have been in 1000 conferences on it, and they, everybody tries to preach communication. And there’s examples where, you know, patients would understand better that bad things can happen without anybody doing anything wrong if there was better communication. But there’s a lot of bad communication. So the way I like to explain it is sort of like an auto accident, or running a stop sign. So if a doctor runs a stop sign in the middle of the night and doesn’t hit anybody in the intersection, there’s no damage to anything. There’s no harm, there’s no causation. And therefore there’s no case if you run a stop sign, and you hit a car, and you cause damages, and it’s your fault. And there’s a medical malpractice case. And what we need to do is have the case looked at very thoroughly by

medical experts to determine if the doctor acted inappropriately, and that action caused the damage and that damage is related to that inappropriate action. So it’s kind of complicated, but maybe not so complicated, but it’s hard to get all three elements in a medical malpractice case. And I often explain that to clients is that difference, because because there’s a whole legal scheme in medical malpractice cases, if you come to my office, and you’ve been in a car accident, I can find a lawsuit today, you know, but when it happens there, you’ve got to obtain records, you’ve got to get an expert affidavit, all Well, before you ever can even be in a position to file a lawsuit. Sure. I read probably minimum and my partner separately about 1000 pages of medical records a week, probably up to 5000 pages of medical records a week, going through each page, looking for the issues, before even sending it out to a medical expert. So that takes a lot of experience, to know what to look for, before wasting anybody’s time or looking for the appropriate expert to review the case. And as we all know, the term expert probably over the last 2025 years is kind of, to me at least wishy washy. I mean, only 40 years ago, doctors were recommending that women smoke camels versus cool. And they were called a medical expert. So you have to find the right expert, the expert that’s smart and it’s not going to tell you what you want to hear because the relationship with the client if you take the case, you’re talking 234 years, and like I always say sometimes to my clients I say you know, you might I might be one of your kids in the futures godfather because you’re going to know me so much. We’re going to talk so much we’re going to have a lot of communication and we’re going to build a good relationship. Alright, let’s let’s shift a little bit because we’ve we’ve been through a year like no other and are continuing through that year. And I will point out since we are close together in studios, we have both been vaccinated double down so it’s, it’s it’s all good as we’re heading in that direction. But But let’s talk about it because obviously every business everywhere has been impacted in one way or the other as a result of the pandemic. Yeah. The legal

Field clearly impacted courthouses shut down, they’re gradually starting to reopen. I know you were part of a, I guess a task force that was put together here in Miami Dade County. Tell me a little bit about that. Let’s talk about how the courts have tried to adjust and where we’re going with this. Sure.

I was involved with the task force, dealing with Dade County, big county courthouse and judicial system on the criminal and civil side. A good friend of mine, Stuart robertson is a well known lawyer in Miami was selected mate of mine, former classmate of yours that’s right was selected because of his perseverance, and his ability to manage up selected by the Chief Judge to put this taskforce together, and it

contained medical experts, specialists from the University of Miami on infectious disease and epidemiology. The high end administrative trial judges,

also government officials and lawyers and constitutional lawyers, civil wars, criminal defense lawyers a good solid scope to study what was happening, we I think we put that into place back in probably June of last year to try to get something going because the judicial system stopped. And that’s very tragic. It’s very tragic. To have it stop and pause even. Absolutely. And and, and I will tell you, I give I give a lot of credit, mean to people I use certain task force, but but our judiciary, because, again, as with everything, really was able to pivot pretty quickly, while the courthouses were closed, you know, all of these things that weren’t in our, in our vocabulary before, you know, zoom meetings and everything else. But they’ve done a great job of continuing best that they can to move cases with zoom hearings. Yeah. And I think, you know, I think a lot has to be given to them. Credit wise, yeah. For what they’ve done.

But obviously, you got to have courtrooms open for things like jury trial. Yeah. And you got to have people there. So

they’ve started gradually. So what’s the process? Now, I know jury trials are back. I haven’t been in one yet. But but they’re, they’re back. My wife’s actually got jury duty next week. So be interesting. The so judge Bailey and judge Soto, the two top administrative judges in Dade County, were probably got their team of a lot of judges in Dade County, working on zoom with hearings, they were doing the most of any county in the United States. So they got on board quickly. A lot of you know, a lot of counties were around the United States moral faction are not set up electronic electronically or didn’t have the motivation. Maybe they thought the COVID would pass. But we’re on board right away. And the hearings held but no jury trials and criminal, which we try to handle first, even though

the civil trials are important, but people are in jail waiting for their trial dates. So we try to get more constitutional rights be able to get Yeah, in front of a jury with with, on the other hand, and if you someone like me represent a client who is dying of cancer that was improperly diagnosed, that if diagnosed earlier, they wouldn’t be in this predicament. And you want to give them a trial day and you want them to see justice before they pass and have their family enjoy seeing their their loved one have justice before they pass. And so now we’re just starting jury trials. We tried everything in the book, we tried virtual with potential jurors on video, or on zoom. And then he tried everything off online. And then we started to bring some people in and and I think what’s going to happen is the only way to get it back really is once we get through this pandemic and get everybody back as closest to normal because you’re everybody’s really got to be there. Jury selection.

The lawyers want to see the jurors, jurors want to see the lawyers and the parties were starting in that direction on their various jury trials with very few. So if your wife got the jury selection, notice I’m just now starting to go out. But again, it’s limited is only going to be a couple court courtrooms and the whole courthouse and there’s about a backlog of several 1000 cases waiting for a jury trial plus all the new cases. So that’s the predicament we’re in right now. So if you took out the crystal ball,

and assuming we’re and it’s a big assumption that we continue the course we’re on the

That we’re we’re sort of over the hump on this. And like I said, that’s a big assumption because assumption because i don’t i don’t know that we’re out of the woods by any stretch, but but assume we can get back to whatever normal is. I mean, how long do you think that backlog in in the courts is going to affect trial lawyers and clients and everything else?

I say this is just my opinion, right?

About three years or so only because, or maybe more, because I look back on Hurricane Andrew. And that shut the whole system down down here. And for years, I even five and six years, people were still lawyers are still following filing continuances and things because their offices were droid and they were shut down, and they couldn’t get back together. But I think what’s going to have to happen is, once jury trials pick up,

once they pick up, a lot of cases will then start to resolve because of the pressure of trial on both sides, resolving meaning a settlement. And once you have that some of the cases are going to start been close. They’ll always be new ones. But then we’ll start to be able to to try cases of getting back in order. But I think we’re three years before normalness, even if we kind of started today. Right? Well, and that’s an interesting point, comparing it to Andrew, because

two disasters, but two totally different you right? Yeah, lawyers, I mean, downtime, you know, lost. And back then. Paper files were everything, you know, pretty much lost everything here, at least with practices. You could continue the practice with the exception of no jury trials and key evidentiary hearings, I think but again, credit to the lawyers in South Florida to be able to adapt, you know, start working from home, at least be able to continue to move cases to some degree. And again, I think a lot of credit to the judges, because at least I found certain judges really embraced it. Yeah. And they had some more time on their hands. Yeah, I’ve never had so many case management conference. Yes. And they were just case management conference ago. What are you doing to move your case? And that’s needed? I mean, you know, to really push these lawyers because we are past the point of saying, you know, I need to continue for this. And that, I mean, cases need to be certified trial ready now.

Yeah, that’s a good point. So we tried a lot of things. And the judges tried a lot of things like non binding arbitrations, which is kind of a mini trial in front of an arbitrator to then decide based on what he hears in the argument. Is there any fault and how much the money, how much money should be exchanged or settled, but it’s, like I said, non binding. So it was only a suggestion doesn’t really have too much of a bite. But we’re really, really trying to close files because the only way

we’re ever going to move ahead is to close the existing pending case law and judges are looked at or one of the things are evaluated on is closing cases. Not that they’re just trying to close cases to close cases. But there’s only so many judges is a lot of cases, it’s Dade County, criminal and civil and you got to get the process close because there’s new cases every day. They’re being evaluated on that they’re doing a fantastic job in Dade County, Broward is starting up very soon. They have a very strong and powerful administrative judge up there judge tutor in West Palm Beach is already starting to try cases. A little bit more laxed up in the Palm Beach area north of north of that area in Jacksonville, they’re trying it. But Dade County, I think is really under the circumstances of of our makeup down here doing probably the best job they can to get the system rolling. Yeah, I think you got to give a lot of credit I watched early on. And it was Brad in Washington, some other lawyers I knew. Did that experimental trial? Yes. You know, again, for jury selection of of having 40 little boxes and trying to engage people. I just don’t see how that ever works. Well, I think because we feel as trial lawyers, that we’re so great. Everybody wants to us. Yeah, we all want to be watched. So we want to be there. But I think it’s very important for the lawyers to watch the jurors every second. That’s what I do. We’re trained observers of the entire courtroom looking at the judges face. The jurors faces posing parties faces opposing attorneys faces, and we’re gathering information, probably wrongly who knows but that’s what we do for a living and we try to use all that to our advantage to help our client. That’s when you figure out juror number six. Wasn’t that he didn’t like your case. He just had indigestion from what he hadn’t lunch but that face you’re like, oh, we’re in trouble. Now. You’re right, right. Or he wasn’t sleeping because you were being totally boring. He was just very tired, right? But that’s the things that happens. And I think the way our system is and it’s one of a kind in the world

With our Seventh Amendment and the right to a jury trial is that it’s kind of set up or everybody should be in the room, you should be able to confront your witnesses against you, you should be able to be able to look, that jury in the eyes going to make a decision on your case. And I think that’s the best way. But we’re trying, even though we can’t do that part right now, we still got to move through the cases, or we’re never going to have justice at the end of the day. And in the way we thought was best having everybody together in one room 100%. And those issues, because you mentioned on that task force constitutional lawyers, was just in, I guess, the other day, and it shows up the Maria’s friend of mine, you know, has now raised an issue and tried to take it up on appeal because he doesn’t want a witness to testify with a mask on. Because again, and you think about it the way we see each other now and you wear masks, but you can’t you know, you can only read so much from somebody, and a judge in the courthouse Dade County Courthouse goes alright, well, we’re gonna wear the clear plastic mass, but they start steaming All right. So you can’t it’s we’re trying to best we can. But I I see the point you want to see the facial expressions were trained to read the demeanor of a person, like a lie detector test, based on what they look like in their body motions. The other thing was when the constitutional lawyers raised up raising the taskforce, we what kind of jurors are we going to get during the pandemic, if we start sending out the notice we’re going to be filtering through people on different categories of people based on their thought in their mind that they can go into the courthouse and be safe versus people that are just as qualified just want to stay home because they believe being safe is there and does that give you a fair trial, because you want to cross section of all the jurors and date potential jurors in Dade County to pick from. And then for medical malpractice cases? Well, we were used to have 100 jurors come in to select from you select six out of 100. And that might sound like a lot, but a lot of people have opinions are very strong. And those people shouldn’t sit on a trial with strong opinions. So you end up almost always like with only a couple extra out of 100. So now we’re like bringing 24 in or 28 people in to pick from, and that’s just gonna, that’s the way it has to be if you want to get your case moving shut down and help your client out. And but but the problem with that is trying to get six out of that 28 that both sides agree on. And you know, not gonna say defense lawyers or anything else. But you know, it’s an easy way to get this to continue to roll over when sure can’t get six jurors. Sure. Everybody wants a B side wants to jurors who they think is there

is they agree with me. Yeah, 100%. Same definition is justice, right. But that’s all it takes to get through this one of a kind situation, we’re gonna have to just dig through it and get through that. I think it’s been tremendous, and you know it firsthand, but again, credits to judge Soto and judge Bailey and all of all of the Dade County judges, because we do get to look a little wider in the state of Florida as to what’s going on, and I think Dade County has has been a front runner from trying the virtual trials, you know, on an experimental basis to trying in person but, you know, jurors are sitting six feet apart, you know, you don’t hand them any documents, they’ve got all of the exhibits ahead of time, I mean, but trying every single aspect of it to to get back to where we can function as a courthouse again, kind of prevents you from doing your old trick of showing the document at the last second.

Actually, now you have to pre Mark everything, you have to give everything away in advance. It’s really not. I’m just joking with you. We’re not supposed to have any surprises. But again, that’s taken all these things take the edge off, the more clever

lawyer or the more sophisticated lawyer, and but again, we got to just dig in and do it. Oh, we’re never gonna get out of this mess. Here. Let’s see, I’ve always wanted you watch all the law and order shows and everything else. Yes. Have you ever had a motion in your pocket? Because you ever notice there’s a debate that’s never coming in? Well, here’s our motion to suppress. So I’ve got to figure out a way I can just start carrying some motions in my I’ve never had it but I’ve had for it. I thought it was very strange that coincidentally they pulled something out when they’re arguing to the judge when I had no clue that they were going to do that. So I was always thought it was a little fishy, right? That happens. But no, I’ve never been able to do that. I wish I could. Yeah, well and I also where I grew up down the street from from Jamie Spats, who was a

The phenomenal story trial attorney and but I learned from him early on, and I it’s harder to do on zoom. Because when he’d see a juror start to nod off, he’d knock a book off of his Oh, yeah. Stay well, sorry. Sorry. No, yes. That way you don’t embarrass the jury. Yeah. But you wake them up. Yeah. And it’s funny because we think we’re the most interesting people were telling the most interesting story and and you’re like, why are you paying attention? I’m so interesting. I’m so good at what I’m doing. But that also helps you hone your skill. And maybe you have to change up something or move bob and weave and change up your story. if everybody’s not paying attention. Well, I teach I teach the students because I teach over in the trial program. And so this this Saturday will actually have final trials, which we’ve done the last few all via zoom. But we do have jurors come in. And it is interesting, because No, it won’t replace it, but they are engaged. Now these are a little different. Because these are students generally that are in either Miami Dade or in high school that are interested in, in learning about law. So they’re very engaged.

But it just you can’t replace it with that. But one of the things I tell them is, you know,

we all think we’re, we’re great, like you said, but you’ve done enough, I’ve done enough, you know, you do these mock trials, where you’ve got, you know, five different jury pools, they split out, and then you start watching on camera. And you’re like, Okay, they got it. They didn’t like, you know, yeah, no, they got what I wanted them to get. But the rest didn’t. And it’s just amazing to watch. But that’s what’s beautiful about the jury system is and I tell the students I go look, you know, you should always, you know, there’s three trials, there’s the one you prepared for, there’s the one that you actually conducted, and then there’s the one you should have conducted. Yeah, but you can’t change too much. Because if you change out those six people,

it’s a whole different scenario, new game every single time. And I always wish that there, there would be the ability to always speak to the jurors after every jury trial. And what what the judge does go, you can speak to the lawyers or not speak to lawyers, most of them just want to get out and go home, wait, again, we think they’re great. We want to hear they just want to get out of there. Sometimes they speak to you. And I’ve gotten fabulous commentary, and critique and compliments and everything that was very helpful. But Geez, that only happens.

Not too often. And I wish that was something that we can do. But you get out. There’s also you can do mock trials and where you get like you’re saying you get jurors together and present your case. And then you can talk to them afterwards. Focus groups, we call them to where you run your case by him you can get hopefully, what they’re thinking. But again, it all depends on the six jurors that are in a box at the time, because it’s the different makeup every time. Well, that’s one of the things with the students. And so the final trials we do. And I think it’s one of the most beneficial things forms because the jury is deliberate in front of them. Whether we do at the courthouse or whether we do it via zoom. And I tell the students I said, Listen, it’s the only chance you’re going to ever get to do this. And it’s hard sometimes because they finish. Again, they’ve just gotten through a trial, all they want to do is you know, I want to go have beer, leave me alone. But it is amazing. The feedback and from subtle things, you find habits that you didn’t realize, you know, you know, you jiggle your keys or you know, things like that. But then there’s also some just really good content, and you hear it from the jurors and and I tell the students I said look, take note of that, because it’s it’s invaluable. You don’t get to do it in the real world never get to do that. And it’s always interesting on how the jury interprets the law that we we see is black and white, because we do it so much a day in and day out. And then you’ll hear stories where they might want to give a verdict, but then they have to, they go well, we have to calculate in the attorneys fee, which you’re not supposed to bring up a day. Everybody’s somewhat familiar with how at least civil stuff works. But you got to just keep instructing them not to do it. But it’s interesting to always know that that could happen in your jury room. And you have to look for a strong four person who’s going to lead the jury and try to pick that person ahead of time. But then again, you’re probably wrong nine out of 10 times when you think who’s going to be the form and when you’ve done the bed at the end who’s going to be the foreman and it’s the least likely person you’re like everybody’s going Yeah, exactly. So that’s always interesting. Yeah, it’s always fun. Yeah, you reached a verdict that one stands up you’re like, supposed to be a 44 person that cannot be mad at not a good sign and most timid shy person that you thought was timid and shy was yelling in the vocal in the background. Yeah, yeah, it’s it’s it’s always interesting and it is wala flawed. I agree. I think it’s the greatest system in the world, for both criminal and civil. So let’s talk pandemic a little bit. You’re on your practice.

I mean, how has it affected you? And what do you see as things that have come out of this that will continue? Well, I don’t like the new recent law that was signed in Florida, that gives

immunity to a lot of different

people. My major concern, part of that is medical. So

on the other hand, I fully understand that in the midst of the pandemic, when everybody was overwhelmed, and in the healthcare industry, it’s hard to hold them to the normal standard of care in that situation. And I believe there should be some type of immunity for that. But I think the law that’s in place has been too, it’s too broad. Because if, if you’re in there for in the hospital for an appendicitis, and the hospital wasn’t busy, because it was one of those down periods, but there’s still quote, unquote, COVID around in the hospital, more likely than not, that those health care providers will be immune from liability. If they failed to diagnose your appendicitis based on the wording of that statute. It’s now you have to prove once you get through hoops, you have to prove gross negligence, which is impossible, right, and basically tried to kill them, you know, right. And you have to before that even argue that they were acting in bad faith, which is lose a lot of bad medicine. But to me personally, a lot of them are not acting in bad faith, or they’re making a big mistake, but not acting in bad faith not acting grossly negligent. That’s not where most of the cases I ever see.

It’s a negligent mistake, a medical mistake or medical error to cause an injury. So you’re never going to get through those hoops. And that’s going to cut out a lot of

cases, I have a case now that I don’t think has anything to do with COVID. But I we roundtable date among many lawyers, and we’ve and the person’s brain damaged that 52 years old, and that case is going to be dropped because their health care providers gonna have immunity on the medical and the medical care entry. I, I agree with you. And you sort of said, because you offered this blanket immunity but but the way we talked about with medical malpractice Anyway, you have to have an affidavit from an expert says they were below the standard of care. And I think, particularly early on, and I think the health care providers did an amazing job of dealing with this, but I don’t think there was a standard of care. So I don’t think you’d be able to find experts to say that these COVID related issues. You know, we’re below the standard of care, because who’s going to define that? But everything else? As with every other business, medicine went on, just like other businesses went on. Yeah. And so yeah, the fact that you sort of blanket immunity, everything is a good is is sort of a difficult problem. But, and I agree, you know, you talk about you talk about doctors, and I get a lot of times, you know, I don’t want to sue my doctor. But I say but but if you hired an architect, and the back, you know, portion of your roof collapsed.

Oh, I’d sue them. Yeah, but but it’s the same thing. They’re a professional. So no, it’s not an issue that they have to be in bad faith, or they are intending this or because you’re right. The vast, vast majority of cases aren’t that. Yeah, but they’re professionals. They need to be held to standards, you put your trust in them. And you should be able to rely on that. Yeah. And I have a lot of friends, my good, close, close, close friends are doctors. And if they asked me to help them look at a case where they’re sued, and I firmly believe they did nothing wrong, I would help them. Just like I’ll help the patient.

We just can’t have frivolous lawsuits. We have to have meaningful just lawsuits. And if my friend made a mistake, and I looked at the case and said you made and I determined me sick, I’d say man, you made the right, you made a mistake. You got to take care of this issue, and then hope let the family move on and you move on. It was a mistake. It wasn’t no one’s saying you did anything intentionally. On the patient side. I would say listen, the doctor was wrong. He shouldn’t have done that. And he caused you significant injury, I’ll represent you and take care of that. So

I just want to make sure that I’m looking to make sure that there’s no frivolous lawsuits out there because we’ll get back to killing all the lawyers. And that’s probably where that comes from, for taking on ridiculous things and that’s the lot of the times that that’s the stuff that you

Putting the newspaper it does. I mean, that’s the unfortunate part of the when.

When people are looking on lawyers to see what type of profession It is, yeah. And and you get you get a lot of that, because that’s what they see they see the McDonald’s cases. And, and that’s what they want to set the standards and Oh, it was horrible liability in that too. But But yeah, but you know, that’s what’s perceived. So you’re right. And but I think and I, young lawyers I work with students I work with and whatnot, I said, you know, obviously lawyers get a bad reputation at times. I said, but that’s up to you to control the reputation you have, you know, Jim knows isn’t going to file some frivolous lawsuit, you know, to get his name and a headline somewhere.

You control that. So control your own reputation. And then yeah, maybe Shakespeare was wrong, and they shouldn’t kill all the lawyers was Shakespeare mean, one of the lawyers that caused a sticker to go on a lawn mower, and it says don’t use it to cut hedges. So that’d be all the kill the lawyers lawyer. Yeah, that, you know, cruise controls and motorhomes, you know, good point and years ago, yeah, we’re not talking about auto driving. You can’t go make coffee while you’re in the RV. I put it on cruise control. Not a good idea. No, no, there’s a there’s a balance in there somewhere else. So. So what else in your practice? Did you see a slowdown in the practice? How is your practice back and evolving? I think

it wasn’t a slowdown of new cases coming in and reviewing the cases, it was a slow process of resolving cases. So

as I tell every client, we want to always, you know, you want to try to get the case resolved to get the stress off you and least amount of costs. But when there’s no pressure on either side, my side, put the risk of trial on me on the other side to put the risk of a jury verdict on them. That slows the system down and you can’t resolve cases and you can’t help your clients out. And you have to tell them look, if the other side doesn’t want to resolve the case, who might be in this thing, three, four years, right. And that’s the honest truth. And that’s what you have to be always be honest, obviously, with the client. So you tried to explain all that. And I think that made us more selective on cases, because you wanted to tell the client and get you a quicker resolution, I think, based on the facts of your case, versus something that’s going to be around three, four or five years from now.

Which makes it then harder and harder to resolve as the case goes on and on. And you end up with a jury verdict, which how great it is also, listen, you that it’s now out of your control, it’s out of the judges control, it’s out of the other attorneys control, it’s in the control of six people you never met before. And that’s that that’s the beauty of the process. And that’s the not so beautiful part of the process. But it’s the end result. And that takes time to get there. And especially when there’s a pandemic going on, you’re talking a long time from now, which is not that good for the client on either side. No, and the other aspects if you’ve got to wait, you know, another three years or so for the jury trial, that’s not necessarily the end, things go very well for you, or things go bad for you. Sure. Then you’ve got the appellate courts forgot all about that. But that’s 100%. Correct. And I had a case where I have some

big photo boards in my office, I show the client that says look at this case, and they go oh, my god, did you When did you lose that? I go, No, I want it, y’all. That’s great. I got no, because then the trial judge took the verdict away. They don’t want they can do that again. Yeah, I didn’t know that really, in that particular case. And then we went to the appellate court. And then, so that took three more years. And then the result was you have to try the case over again. And that was a two month trial. So and that changes all the dynamics. So you know, you want to resolve your case as quickly as possible for all different kinds of reasons that your lawyer can explain. And

it’s probably in your best interest always keep you have control of what the end result is. And maybe it’s not the most perfect result. Maybe it’s a great result. But you still maintain control and take out all the other risk of maybe getting nothing at the end of the day. Well said Well said. So we talked about the difficulty in sort of establishing and proving a medical malpractice case. So what advice do you have just to the general public who says Well, how do I know whether I’ve got a medical malpractice case?

All right, if you think you have a medical malpractice case, and most people think they get that feeling from, unfortunately, the lack of communication from their physicians, or they’re like, now this isn’t the result it’s supposed to happen, or it’s so obvious that because you were in the hospital or you were in the doctor’s office, or jus, and you know, what was being said, then versus now?

Or it’s the friend in New York, who’s a lawyer who says, Oh, that’s a multimillion

dollar case. You know, that guy to every one of my this is a slam dunk. And yeah, yeah. And you’ll get a lot of a lot of times the nurses will go, Oh, my God, I can’t believe the doctor did that to you. I can’t believe the doctors. I can’t believe the nurses did that. Usually, they don’t end up testifying to that at the end of the day. But yeah, yeah, but you need to get, you need to get a lawyer who is competent in medical malpractice, who is going to be committed to you that will know your case. And you don’t want someone who drags the case on, doesn’t return your phone calls, lack of communication, you want someone that’s on top of it quick, decisive, and then puts the ball in your court at the end of the day for you to make the decision. But with the right information, that’s who you need to get. A lot of times also, you might have a great case. But in Florida, there’s no law requiring medical malpractice insurance. And so you might have a lawyer that says you have a great case, but I can’t take it because there’s no medical malpractice insurance, and then you have to explain that whole system. And it might seem that

this is what I told the client, it might seem like it’s unfair, which it is, but unfair, that the lawyer will take your case, because there’s no insurance. But at the end of the day, the lawyer can only bring you money, right? more likely than not, there’s not going to be changes or policies or the doctor is going to act a different way, or the hospital is going to change something, we can only give you money. And if we can’t do that, there’s no reason to take the case. And that’s just the unfortunate fortunate lock of that situation with that physician or healthcare provider that doesn’t carry medical malpractice insurance. And there’s a lot of nuances to that. But the important part is, is if they have insurance on the front end,

you have more of an opportunity to resolve a case than if a physician has no insurance. And that whole process of trying to get money from someone that doesn’t have enough money or protected money

to give to your clients. Well, that that’s the harsh reality. And you’re right, that money is always protected. If that doctors bear, he’s not going to have likable assets or anything else. And, and that is one of the hard conversations to have with clients. And and even they want, you know, they want the pound of flesh they want. They want justice, they want the doctor to lose his license. And you’re right, absent some extraordinarily egregious things, which just aren’t there in most cases, because again, it’s not an intentional act. It’s not Yeah. But then telling them, well, you have a case, we can’t go forward, you know, because you won’t get any money at the end of the day. We can’t get paid at the end of the day. And and it’s a tough, tough thing. Yeah, to sell to a client or to just to tell the client, yeah, it’s very tough, they don’t understand it, they might look on the internet and see where there is a requirement to have at least $250,000.


if you read that black and white, it’s not really what it means it means way, at the end of the day, if you go get a verdict, and you go chase that money down, etc, etc, etc, three, four or five years later, medical malpractice cases, the lawyer tries to be selective because they’re very expensive between 75,000 you know, and sometimes 250 $300,000 or more, or way more, depending on the complicated, complicated nature of the case. So you got to be very selective in the cases because ultimately, the clients going to pay, pay for the cost, which you want money at the end of the day to be there. So they can do that. Particular those cases that go to verdict get taken away, they go up on appeal to get retried and those things you have no control. No country goes, you know, having it you know,

trying to have a perfect trial, where every ruling, you know, is unquestioned just doesn’t happen. There’s too many moving parts in there somebody is going to have some cases to at least get an appellate courts take a look at Well, my case what they waived all issues

that that I acted improperly in the trial waived at all and just said the verdict was unfair. And I went on a lot of issues about you being appropriate.

I agree. I agree. I agree. But I never, even in my experience, like I go to my appellate Lawyer Go, we want this judge took it away, because it was unfair that we sat here for two months. And he is, now they can do that. And you only have a 50% chance of winning that like what? And that was enlightening to me. You’ll learn something new every day. And I was like, Are you kidding me? I mean, it was a clean trial. They’re waving everything, right, any error. And it was against the manifest the way to the evidence. It ended up where the jury form and read that order and wrote an editorial or an opinion piece to the newspaper going, what is the judge talking about? You know, we sat here for two months, listen to every day, we deliberated for three days. No one tricked us not. We listened. I don’t know what you’re saying. And

in a way for another three years after four years, so it is surprising that they do have that power. And and you think well, wait a minute, now you’re just substituting yourself for the six jurors, why don’t we just have a bench trial? If that’s the way it’s gonna go? Well, that’s because you and I are an appellate lawyer. That’s true. That’s true. We’re just in the trenches. We need smarter people.

Lawyers, definitely. All right, listen, Jim, it is It has been an absolute pleasure. My pleasure.

Always like seeing you always like talking to you, you know,

legal and otherwise. And I look forward to working on some cases with you. As we continue on. I want to thank grant Miller and community newspapers for giving us this platform and our producer Tommy for making us all try to look good and put it all together. And we’ll be back next week. I think Well, next week, we might get into I might drag my law partner in here, mark here to talk about changes in in automobile insurance law, because it looks like that’s going to go through and that’s gonna be a pretty big sweeping change. So we’ll educate you on on where that is. And until then, everybody have a great week.