Attorney Marc Breakstone was featured today in a front page article in Massachusetts Lawyers Weekly concerning factors which may influence plaintiffs’ attorneys to take medical malpractice cases to arbitration and waive the right to a jury trial.
Attorney Breakstone, a medical malpractice lawyer who has practiced in Boston for 28 years, has obtained record-setting awards for clients in medical malpractice cases involving surgical malpractice, failure to diagnose cancer and ambulance negligence.
Breakstone was among a group of Boston medical malpractice lawyers who were interviewed by Massachusetts Lawyers Weekly. The lawyers cited a number of reasons for taking cases to arbitration, including the ability to remove some of the risk when insurance companies agree to pay plaintiffs within a range of compensation limits at the end of the process.
Breakstone said the personal needs of a plaintiff may also be a valid reason for choosing arbitration. He recalled the case of a terminally ill patient whose trial was delayed.
“I was uncertain my client was going to live that long,” Breakstone said. “I elected to waive a jury and arbitrate the case so that my client could have her day in court, so to speak, and see her case to the end.”
A plaintiff’s personal circumstances may also come into play, Breakstone said. For instance, if a plaintiff is an undocumented immigrant, jurors may consider that over the facts of the case.
“You’re more likely to get a fair hearing in front of an arbitrator who’s more likely to disregard those factors,” Breakstone said.
Arbitration may also be the best choice in cases when aggravating factors work against a defendant, such as substance abuse, Breakstone said. In those cases, the plaintiff may obtain a higher award from an arbitrator.
“A jury is more likely to be upset and want to punish the defendant in a compensatory award than an arbitrator would,” he said.
Read the Massachusetts Lawyers Weekly article (subscription required).
Massachusetts Lawyers Weekly writes this week about the divide among lawyers on monitoring social media use and Internet activities by jurors. It is a common practice, especially in Massachusetts, which does not allow attorney-conducted voir dire. There have been no ethical opinions on the subject issued in Massachusetts. Not all attorneys are comfortable with it, but some consider it fair.
“I see no ethical issue. It’s in the public domain,” says Marc L. Breakstone, a Boston personal injury and medical malpractice lawyer with over 25 years of experience. “The public domain is the public domain. There’s certainly nothing wrong with checking the Internet. There would be a lot wrong with interacting with jurors or doing anything on the Internet to influence jurors with respect to the case.”
Breakstone later adds, “Trial lawyers are starving for information about jurors. The Internet is a potential treasure trove of information. Why wouldn’t a diligent trial lawyer inquire of that source? I would rather have voir dire, but without voir dire, this is all I can do.”