Why We Tell Our Clients NOT to File Suit

Little Rock Medical Malpractice Lawyer Serving All of Arkansas


Deciding to File Suit

            It is an unfortunate fact of life that many of the people who do the most damage in this world have no means of paying for the damage that they do.  Any trial lawyer can tell you dozens of stories about drunk drivers who kill whole families—but have little or no auto insurance, or deadbeats who don’t pay for goods and services but have no means of paying a judgment either.

            For such people, the civil justice system holds little fear:  you can’t get blood from a stone, and a ten million dollar judgment against a man with no money isn’t worth the paper it’s printed on.   The analysis of whether the case should be filed consists of three questions:  1) Can we prove that the potential defendant did something legally wrong?   2)  Can we prove that what was done wrong caused sufficient damages to make suit worthwhile? and 3) If we win, can the defendant pay a judgment?

            Each of the three questions is critical.  For example, my firm reviews a lot of medical malpractice cases.  It often happens that, based on the facts of the particular case we are reviewing,  we can prove that the doctor involved was negligent—but we can’t prove that the negligence made any difference to the outcome of the case.   Last week my firm declined to handle a case in which was obvious that the doctor involved had failed to diagnose a severe internal injury, and as a result failed to initiate treatment.  Unfortunately, the injury was so bad that no matter what the doctor did, the patient would have died anyway.  Was the doctor negligent?  Yes.  Did it make a difference?  No—and therefore there is no case.

            Likewise, we see many potential cases where a person’s actions have unquestionably caused damage to someone else, but the amount of the damage is too small to justify the expense of a lawsuit.  With attorney’s fees and litigation expenses typically exceeding $5,000 in even the smallest case, filing suit over $1,000 usually doesn’t make any sense.    Some of these cases can be handled by non-lawyers in small claims courts.  For those that can’t, or if the defendant cannot pay a judgment once it is obtained, the system has little to offer.

            In Texas, the medical malpractice cases we handle have artificial damage “caps” enacted in legislation years ago which prevent insurance companies from having to pay for the damage doctors and nurses cause to their patients.  This cap of $250,000 is so low, and the cost of pursuing medical malpractice cases is so high, that often we have to decline cases—good cases, where there is clear negligence by doctors causing serious injuries—simply because it would cost so much to get the “capped” damages that the client would end up with little or nothing.

            At its most basic level, the civil justice system is about money:  one side is saying that the other side owes them money, and they go to court to have a judge or jury decide the issue.  Juries can only award money—they can’t make a defendant a better person, they can’t heal injuries, and they aren’t a time machine that can change the past. 

Sometimes a money judgment can do a world of good and a lot of justice.  And sometimes, when the defendant cannot pay a judgment or the judgment will cost more to get than it is worth, a jury trial is just a waste of time.  One of the most valuable things a lawyer can do for his clients is to help them make the distinction.