The short answer is yes you can.
But you might be asking how that's possible.
Glad you asked.
Let me explain...
When you bring a civil lawsuit against someone you believe was careless who caused you harm, you're asking them to compensate for all the harms, losses and damages you suffered BECAUSE of their wrongdoing.
In a medical malpractice case, for example, you claim that your doctor was careless.
You claim that he violated the standards of good medical care.
You claim that his wrongdoing caused your injuries.
You also claim that your injuries are signficant and permanent.
The doctor, in replying to your allegations will first argue:
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"WHY ARE YOU SUING ME? I DID NOTHING WRONG!"
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Then, he'll argue "IF I DID SOMETHING WRONG, IT DIDN'T CAUSE YOU HARM."
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Then, he'll argue "EVEN IF I DID SOMETHING WRONG AND IT CAUSED YOU HARM, YOUR INJURIES ARE NOT THAT BAD!"
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Then, to make matters even worse, he'll likely argue "BY THE WAY, YOU ALSO CAUSED AND CONTRIBUTED TO YOUR OWN INJURIES!"
Those are the typical defenses a doctor will raise in a malpractice case here in New York.
He'll also have his attorney tell your lawyer "We will never settle this case. Let a jury decide if you're entitled to a verdict in your favor."
That means you're likely going to trial.
But that last statement could just be the doctor and his attorney posturing.
The facts may reveal that the doctor is responsible for your injury.
That may prompt the defense to want to negotiate.
Let's say for this example that as your case proceeds through the litigation and is now coming up for trial, the defense begins negotiating.
Your attorney calls you one day to tell you that the defense has made their very first settlement offer.
Let's say they offered you $500,000 to settle.
You scoff at the offer, claiming you won't settle for less than $2 million.
Your attorney tells you there's likely more money available to the defense but that they won't come anywhere near your $2 million demand.
You don't care.
You're insulted by the defense's offer.
You immediately reject it.
You know that when your case goes to trial, the jury will decide in your favor.
You feel it.
You feel it in your gut.
You know the jury will do the right thing.
At least you hope so.
You feel reassured telling your lawyer to reject the offer.
You are comfortable having him go back and try to get as much as possible.
He knows that and will try.
A few days later, your lawyer calls and tells you that's it.
No more money will be offered.
The defense claims this was a 'fair' offer and they refuse to increase their offer.
You're now annoyed.
"Screw them!" you tell your lawyer.
"Let's go to trial! We'll show them!" you say to your lawyer with encouragement.
"Ok," your attorney says.
"But I want to warn you..."
"Going to trial has risks."
"Risks for both sides," your lawyer cautions.
"The jury could come back with a very large verdict."
"That means that the defense will do everything in their power with the trial judge to get the verdict dismissed or reduced."
"Then, the defense will do everything possible to appeal to the higher court to again get your verdict reduced or thrown out."
"The jury could come back with a verdict for the doctor, in which case you get NOTHING," your attorney tells you.
"The jury could also come back with an amount LESS than what has been offered."
"Fine. I don't care. I'll take my chances," you say defiantly.
To trial you go.
Your trial takes two weeks from start to finish.
It's an emotional roller coaster.
Some days you're on an emotional high.
Other days you're on an emotional low and feel like you're losing your case.
Throughout trial, the defense refuses to increase their settlement offer.
By the end of your trial you are exhausted.
You're drained.
You're tired.
You want a decision already.
That day has arrived.
The attorneys make closing arguments in the morning.
The judge explains the law to the jury right after. This is known as the jury charge.
The jury is given a series of questions they must answer in order.
The answers to those questions form the basis for their verdict.
The first question typically asks whether your doctor was negligent.
What that really asks is whether the jury believes that your doctor was careless.
If they answer no, that's it. Your case is over and you get nothing.
If instead they answer yes, then they are required to answer the next question about the link between your doctor's carelessness and your injury.
We call that causation.
Is there a link between the two?
Is there a connection between what he did wrong and the injury you suffered?
If the answer is no, then your case is over and you get zip. Nada. Nothing.
If the answer is yes, then then jury is required to decide how much money you are to receive for the different element of damages you're claiming.
You could have monetary damages that can be calculated such as lost earnings.
You might not be able to work into the future and you might have a claim for future lost earnings.
Maybe you have medical expenses that you paid out of your own pocket and are asking to be repaid.
Then there are the less tangible damages like the pain you endured and the suffering you were made to deal with.
The jury will be asked to evaluate your pain in the past and the pain you can be expected to experience into the future.
The jury now goes out to deliberate.
The hours you spend waiting for your verdict will be torture.
You won't understand what's taking so long.
You won't be able to concentrate.
You won't know what to do with yourself.
You'll wish you were a fly on the wall and could hear what the jury was talking about.
You'll wish there was closed circuit video so you could see and hear what was going on in the jury room.
The time will pass very slowly.
You'll be walking the court house halls.
You'll be wondering when the jury will come back with a verdict.
Finally!
Your lawyer tells you that the jury has reached a verdict.
You're excited.
You're nervous as you head back into the courtroom.
You want to look at each juror as they enter back into the courtroom.
As they do, you begin to worry.
Not one juror makes eye contact with you.
Not a single one.
You feel like throwing up.
That can't be good.
You've heard that if they were to find in your favor, they'd be looking at you.
Maybe smiling at you.
Maybe acknowledging that the verdict was coming your way.
But now, you feel bad karma.
"Oh no," you think to yourself.
Your lawyer can't see you, since he's sitting at counsel table.
He's also watching the jury march in.
He's looking for eye contact.
There are a few brief looks his way, but nothing significant.
Definitely NOT a good sign.
The judge asks the foreperson to stand.
"As to question #1, was Dr. Jones negligent, how do you find?"
"We find, yes, he was," the foreperson answers.
You think "Yes! That's great!"
"As to question #2, was Dr. Jones' negligence a proximate cause of her injuries?"
"We find, yes, he was," comes the immediate response.
You are thrilled!
Two questions now in your favor.
Now it's time for the jury to tell you how much money you are to receive...
By the time the jury foreperson is done, you are devastated.
You've added up the total amount the jury has given you as compensation for your injuries.
It only comes to a total of $150,000.
HOW COULD THIS BE?
How could they give me a verdict in my favor and only give me $150,000?
HOW IS THIS POSSIBLE? you wonder.
You think this is not possible.
The jury is dismissed and the judge thanks them for their jury service.
You hear your attorney tell the defense lawyer "We'll talk."
As you walk out of court, stunned, you ask your lawyer "Can we still take the defense's offer of $500,000?"
Your lawyer almost laughs and says "You're kidding, right?"
The defense has no incentive to offer that amount of money considering the jury decided you're only entitled to receive $150,000.
Your lawyer does offer one encouraging thing.
"Listen, we can approach the defense and let them know we will likely appeal the verdict. I can see if they're still willing to negotiate for more than what the jury offered," your attorney tells you.
"Will they offer more than their initial offer?" you ask hopefully.
"Not a chance. There is the possibility they will offer more than what the jury gave you, but less than what they initially offered."
Your attorney tells you that the defense might realize that from a legal standpoint they run the real risk of having your verdict thrown out and a new trial ordered. In that case they may see a risk for an appeal and a new trial.
To answer the question I raised in the title of this article, yes, it's possible the defense will want to negotiate after your verdict.
