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The Importance of Preparing a Legal Brief in Medical Malpractice Cases

Mar 30, 2015 | Medical Malpractice

Why is it critical for a trial attorney to anticipate the legal issues that are going to arise during the trial? On top of this, to have a trial brief prepared-ready for the judge during trial?

Anticipating Legal Issues

Many legal issues can arise during the trial of a medical malpractice, accident, or even a wrongful death case. The lawyer knows that the defense is going to give him a hard time since they are going to defend their case in every way possible. The defense might want to dig up some information that has happened in your past, which you might not want the jury to know (or the judge for that matter!). Your lawyer may not be ready to defend you if there is a surprise and if your character is besmirched.

Winging it off the cuff is not simple at all and making a legal argument all the time is not always possible. They will do their best to protect your character because they want to win this case as badly as you do.

What is a Legal Brief?

Instead, your attorney has to prepare what is called a legal brief. This brief is a compilation of cases that are similar, on point, and have similar fact patterns to your case. Based on these cases, your lawyer can tell the judge that in similar set of facts in a previous case the judge had made such and such ruling and so on. Your lawyer will then draw parallels to your case and say it is almost the same situation and therefore warrants a similar ruling, which is in your favor.

The defense will have the opportunity to oppose that, and present their own legal case compilation, showing why the judge should not rule in your favor. However, a smart attorney should anticipate all of the legal issues, especially the significant ones that are going to arise during the course of the trial.

Importance of Legal Brief

What usually happens is that you will try to introduce something in evidence, and defense will make an objection. The judge will then turn to your lawyer and ask him what legal basis he has for introducing this information or thing into evidence. Now at such a moment if your lawyer does not have anything prepared and he tries to wing it, the judge will most probably make an off the cuff ruling, and he will deny the request.

This can happen when your lawyer has not prepared legal precedent to show to the judge. He does not have any cases to show to the judge where the previous judges had ruled in favor of admitting such evidence. If the judge is presented with such precedent, he will look at it, evaluate it, and then make an educated decision about whether the prior cases are similar to this case and if so rule in your favor.

Your Attorney must do their Homework

When your lawyer is able to present precedent the judge has something to work off of. In such an instance, there is a likelihood he will rule in your favor or grant the request your lawyer is making. However, when your lawyer is simply trying to wing it, the judge does not have any proper basis to make a ruling and he might simply deny your attorney’s request.