Episode #311 – Med Mal Perspectives from an Attorney, Physician, Mediator, and Arbitrator – Part 1
Guest: Paul Molinaro, M.D., J.D., Physician, Attorney, Mediator, Arbitrator – Founder, MD JD Dispute Resolution
by Courtroom Sciences
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Episode #311 – Med Mal Perspectives from an Attorney, Physician, Mediator, and Arbitrator – Part 1
Full Episode Transcript
[0:14] Steve Welcome to the Litigation Psychology Podcast, brought to you by Courtroom Sciences. Dr. Steve Wood here in my makeshift office. Not quite back in the studio yet, but I’m looking forward to the conversation I’m going to have today. I’m really excited about this guest. He’s somewhat of a renaissance man, I would say. He is a physician, an attorney, a mediator, an arbitrator. Dr. Paul Molinaro, how are you?
[0:39] Paul Pretty good, thanks for having me on the show. Appreciate it.
[0:41] Steve Yeah, no, I’m looking forward to it. You know, I think you’re going to bring a really good perspective here, and I want to kind of touch on all of these different aspects of the experiences that you’ve had. You know, because you bring a different perspective than, say, just an attorney or just a physician. But I really want to kind of take a step back and have you explain to our audience, like, what is this? Talk about your path from physician to attorney to mediator. I think it’s interesting.
[1:11] Paul Interestingly, I will say I was premed in college, went to college with the idea that I was going to get involved, go to a medical school. However, it was going to be veterinary school. And back in the 80s, it was actually harder to get into veterinary school than human medical school. And when I realized that, I ended up opting just to apply for medical schools. Glad I made the choice. But that’s actually how I got interested in that. So, I was a premed all through college, biology, science major, and then went to medical school right after, which is what most people did back then. Now it seems like people take a few years between college and medical school, but back then it was pretty much expected you’d go from one to the other. Graduated from New Jersey Medical School back in 1991. And then I ended up coming out to California, Southern California specifically, to do my internship at San Bernardino County, at that hospital, which was in San Bernardino at that time. And then they moved, of course, after I’m done. They decided they’re going to move into the brand new facility, which everybody had been waiting for, that was supposed to be there before I started, and of course delayed. And then they open up this state-of-the-art facility a couple towns over, where I could have been, had they just been on schedule.
[2:34] Steve All right, so you finish, and then you practice medicine for how long?
[2:38] Paul So I still practice. I still see patients one day a month, on the weekends only. I started working in the emergency rooms. Back then you didn’t need board certifications to work in emergency rooms, so I could do that at the time. And I started doing urgent care medicine. Then shifted, once it became pretty standard for board certifications for ER, which I’m not, did all urgent care work until around 2002, when I decided to attend law school. I still practice urgent care medicine, like I said, one day a month on the weekends only.
[3:09] Steve Okay. And what led you to law school, though? I mean, how did you go from practicing physician, still practicing, and said, you know what, I want to make the shift and become an attorney?
[3:19] Paul So, two things, right? There’s the why law and then why no longer practicing medicine. Just always was interested in law. Had a lot of people that I knew who were lawyers, seemed to be really enjoying it. I’ve always been fascinated with that. That’s always been something I thought about doing. I’ve been asked a lot why the shift from medicine to law, and the answer really is when it became more important to make patients happy than better. Patient surveys started being given out in the, you know, late 90s. And then with Yelp and other sites like that, especially urgent cares, people will not go to an urgent care if they got bad online reviews. And the classic example is antibiotics. People come in and they say, “I have a sore throat for an hour.” And you know it’s a virus, or there’s no need to give antibiotics. And as doctors, we’re supposed to be what they call stewards of antibiotics, not give them out too often, because you can build up resistance in communities. And then the patient would then go home, give you a bad review, go to another urgent care two, three days later, get an antibiotic, they’d get better in two days, and they would be convinced that second doctor got it right. And you might be a good physician without the antibiotics, but you’ll have an empty waiting room. So, the business side of it, and then of course the people who own the clinics and the managers are like, “Hey, can you please start giving antibiotics when they’re not necessary?” And then that whole conversation was not a good one to have. So yeah, and then it just spiraled from there. And then of course the whole way that medicine’s practiced with, you’ve got to get somebody at the insurance company to give approval for anything you order. You know, you need an MRI for someone’s knee, but you’ve got to jump through all these hoops and do unnecessary physical therapy for weeks before you can get it, and all that. It just became not fun. And then you were the only person that the patient could get their frustration and anger out on, because you’re the guy that, you know, you walk in the room, and you’ve got to explain why they can’t get what they want done. They can’t yell at the insurance guy, so they yell at you, and it wasn’t pleasant.
[5:25] Steve So when you went into law, what was your area of expertise while you were an attorney, while you’re practicing?
[5:32] Paul So, as you can imagine, I thought I would, and that’s kind of what I did, anything with medical components. So personal injury, medical malpractice, products liability where there was bodily damage done. And then, as a two-man law firm, interestingly, the one area of law that I really wasn’t interested in was real estate. But we were a little older graduating from medical school. My law partner of the last 20 years had owned mortgage companies, we had real estate clients from day one, so I became quite adept in real estate law. So, it’s kind of hard to say, “Oh yeah, I’m really good at anything with a body, oh, and real estate, too.” “And by the way, if you’ve got any mortgage questions or you’re buying a house, let me know, too. I can help you there.”
[6:13] Steve There you go. I might have some questions for you maybe afterwards. So, talk to me a little bit about, you know, you’ve had to evaluate cases as a physician, and how you kind of look at those when the outcome is bad, but you have to look at it from an aspect of reasonableness, not perfection.
[6:37] Paul Right, so one of the things I like about medical malpractice law, or personal injuries, it’s under the standard we call negligence, it’s a tort in law. And I’m not somebody who likes to look things up or work in complicated areas of law, like the constitutional lawyers who are, you know, burying their heads in research. Negligence is basically the cause of action. The cause of action for negligence is very simple. You’ve got a duty, a breach, causation, and damages. Those are the four elements that you have to prove, and they’re very simple, and it hasn’t changed in like, ever. So, you very rarely find yourself looking up or researching a personal injury case or a medical malpractice case. It’s all about those things. So, I think one of the things that I find people don’t know when they call me is bad outcome. Everybody gets a bad outcome, that’s why they usually call me. That doesn’t mean you’ve got a great case. There’s a whole bunch of reasons that just a bad outcome doesn’t mean you have a great lawsuit. Bad outcomes can happen just because even the best doctor in the world, the top guy or girl in the world, could have the same outcome. Some people just have terminal disease or whatever. There’s other things called acceptable risks. An infection is probably one of the most common. You go in for an operation, and an infection happens post-operatively. It just happens sometimes, and that’s known to be an acceptable risk of a procedure. So, you’ve got to sort those out, too. And then the one that tends to catch most people by surprise is what we call the standard of care. I did bring it up because I knew you were going to ask me about this. The jury instruction in California for standard of care, I’ll read it and then I’ll explain it, because it’s actually pretty straightforward. This is what you would read to a jury.
The medical practitioner, the healthcare provider, is negligent if he or she failed to use the level of skill, knowledge, and care in the diagnosis or treatment that other reasonably careful practitioners would use in the same or similar circumstances.
So, when you unpack that, what it means is, what would a reasonable physician, in this case what we’re talking about, of the same specialty have done in that same situation? It’s average. And when you start saying that, you’re like, “What do you mean, average?” Yes, average. You’ve only got to practice medicine, you don’t have to be the best. You don’t even have to be really good. Just be average, and you’ll be fine practicing that standard of care. And then people hear that and they’re like “Wait, wait, I want to…” Yeah, that’s all you have to do. So, when looking at a case, you have to seek damages. Everybody calls me with damages, right? My phone rings, they’re hurt, that’s usually a given. Then, was the standard of care breached, is a big question. And the way that’s determined is through expert witnesses. You don’t get to just tell the jury the standard of care was breached. The instruction, the way the jury hears it is through an expert. So, each side will hire an expert. Of course, the plaintiff’s side’s expert is going to say the standard of care was breached. The defense expert’s going to say it wasn’t. And then it comes down to a battle of the experts, as we call it, where the jury listens to both experts and then makes their own determination on which one they find more credible, which one they believe. And what people don’t want to hear is, which one had the better looking tie that day. Maybe, you don’t know. But that’s how it’s determined. It has to be done by an expert who is of the like kind that the physician is, or at least can opine to that. And again, not in hindsight, not when we all know that something went wrong and we can all say, “This is what we should have done instead of this.” It’s at the time it happened. Somebody made a right when they should have made a left, and another average physician would have made the right, and the defendant here made a left. Or if he made a right, he’s not liable.
[10:38] Steve And I think you said a couple things there that I want to unpack a little bit. I mean, first and foremost, is how difficult is it for jurors, and, you know, from my experience, this whole idea of standard of care and, like you said, what a reasonable physician would do under like or similar circumstances. You know, how you’re saying pretty much average, I think that’s a terrifying concept for jurors to think, “It just has to be average?” I think this idea that physicians have to be perfect, and they can’t make a mistake, and if something happens it must be negligence. What are your thoughts around that?
[11:09] Paul And, this just popped into my head, but can I mention a George Carlin joke from the old days?
[11:12] Steve Sure.
[11:12] Paul Where he says, “Everybody thinks they’ve got the best physician. And there is one, there is a best physician out there in whatever practice, and somebody’s got an appointment with him tomorrow.” But if that’s true, there is a worst physician out there, and somebody’s got an appointment with him tomorrow morning at 9:00 a.m., right? But nobody, it is terrifying to think that when you go to the doctor’s office, he’s only got to be average. Everybody wants to believe that their doctor is the best, or they wouldn’t go there. And the idea that he’s just average, or she’s average, is terrifying. But that’s all that can be required. We’re not looking at a standard of perfection. Back in medical school, I still remember this to this day. We were listening to all the different specialties come talk to us, and there was this ENT surgeon, and he said, “People will call me arrogant and conceited. I think I’m one of the best ENT surgeons around.” And he goes, it’s not about being average, but in his mind he thought, “If I don’t think I’m better than the guy up the street, I have no business cutting into you. I should send you to that person. And I’ve always practiced that way, and I always will. If you can’t get to that person,” because there is a best guy, but not everybody can get to that person, right? “But if there’s somebody that I can reasonably send my patient to that I feel is better than me, I have no business treating that patient.” And a lot of people think that that’s how it’s going to be practiced. But I almost want to meet him, and I don’t know where he is today, and tell him, “Hey, man, you only had to be average. You didn’t have to be the best or better than everybody else. Just had to be average.” And you said it, you’re terrified to think that.
[12:48] Steve Yeah. And, you know, and when we talked about, another thing you mentioned that we see a lot with jurors is this idea of hindsight bias. I’ve written on it before, and you brought it up, but that’s another difficult concept, too. When it gets to the jury, the jury already knows something bad has happened, and then you start looking at it with 20/20 hindsight and saying, “Oh, well, this should have been obvious. This should have been known. Like, how did you not see this blood pressure? How did you not look at this category one strip?” Like, all of that type of stuff. What has been your experience with that too, as far as having that battle between hindsight and knowing what was at the time and making decisions at the time?
[13:27] Paul Depending on which side, you know, if you’re representing the defendant doctor or the plaintiff who was injured, you’re going to say, “Yeah, that doctor missed this glaring thing that now we all can see.” The famous X-rays, you know, with a little hairline fracture, once you see it, you can’t unsee it. But you’re in the emergency room, or you’re in the urgent care, or you’re the radiologist ripping through these X-rays, and you miss it. And then when someone circles it and shows it to you, it’s kind of like Find Waldo. Once you’ve found Waldo, you can’t unfind Waldo. So, everybody sees it, and it’s hard. It is hard to convince the jury, if you’re a defense attorney, that it was reasonable to miss that, in the way everything was happening at that moment. Of course, we’re here because that was missed. However, yeah, that is a tough one, because again, people don’t want, you know, I go to my plumber, he doesn’t fix my toilet, it’s going to continue leaking, no big deal. I go to the doctor and he messes up, people are very afraid. The idea that your doctor is not the best, or could mess up, is scary. And everybody goes to the doctor, and everybody wants to believe that their doctor did the best and was the best. So, you’re really hitting the whole idea of, you know, we can put up with some mistakes in other areas, but not this. This is too important. Life or death, literally, is on the line.
[14:50] Steve Well, that’s what we hear from jurors a lot, too, right? People can make mistakes in other areas, but medicine, you’re not allowed to make a mistake, because like you said, it’s life or death. You know, I think one of the other things that we see a lot, too, that you talked about, is you mentioned ripping through these X-rays. I think one of the things we see from jurors, too, is they talk about this idea that medical professionals are moving too fast, they’re overworked, they’re going too quick, and that’s when mistakes happen, because they’re not focusing enough on X-rays, they’re not focusing enough on the tests, because they’re overworked. What has been your experience with that?
[15:30] Paul That can take me back to one of the things that was making working in urgent cares unpleasant. The idea of how many patients you have to see per hour, it’s now about four or more, but four is the minimum. That means 15 minutes per patient. That includes all your charting. And then you can imagine, you get somebody with a laceration that took you an hour. Now you walk out of the procedure room and you’re backed up. So now somebody else is not getting their 15 minutes. So, you’ve got to catch up. That didn’t seem to be such a problem in the early 90s, as it started growing and growing, and now it’s gotten to the point where, yeah, that’s what you’re expected to do. A lot of these smaller practices, and even emergency rooms, are bought out by larger and larger companies, and the consolidation, those guys are much more able and proficient at keeping track of how many dollars per patient a doctor generates, how many patients a doctor can see per hour, and all kinds of stats that were just not available before. And that pressure is on. And you are 100% correct, that is something a plaintiff’s attorney will bring up and say, “Doctor, were you under pressure to get this patient in and out? And had you had more time, do you think more time would have helped you find that blood pressure, or maybe run that extra test that you thought, well, I don’t need the patient in the ER another hour, I need to get him out to get somebody else in?” You’ve hit it, yes, 100%, that is something that’s changed in medicine today.
[17:00] Steve Yeah. And you know, you talk about kind of some of the things that worry doctors, as far as the things that were stressors to you, and what kind of led you away from medicine. What has been your experience, as far as, you know, I’ve worked with a lot of physicians getting them ready for depositions, and a lot of them have a lot of consistent fears about the deposition process, what the litigation is going to mean for their license. Can you talk a little bit about what your experience has been, and what you’ve seen and heard from physicians when they’re going through litigation?
[17:30] Paul I think that I practiced medicine so long before becoming a lawyer that I can definitely see both sides. Before I was a lawyer, before I got involved in law, I was just afraid the whole time that the lawyers are going to be able to twist everything that I say. And they’re just looking for me, and I’ve got to practice defensive medicine or I don’t do something. I actually, even as a physician, had never understood standard of care being average. If you explain it, most physicians don’t get it. They’re like, “I’m held to a standard of perfection,” and they really believe that, just like the public, you know, their patients believe it. So sometimes you get deposed for a couple different reasons. One is obviously as a defendant, but if you get called in as a fact witness, in other words, you treated a patient in the ER. I had one that had a broken arm and they wanted my deposition. And this is before I knew anything about law. And I got called, I got summoned, and I started telling everybody, you know, all my colleagues, “What do I do? What do I do?” They all said relax. I said, “I don’t want to become a defendant. They’re going to trick me up. They’re going to make me say something.” They go, “No, they just want you to talk about, you know, what you found on the patient, what kind of break it was.” So, I called my own insurance company, and your medical malpractice carriers will actually provide you with legal advice and an attorney if you really want. And I was pretty nervous that whole time, trying not to say anything. I kept thinking, “They’re going to trip me up.” And they didn’t. They just wanted me to describe what kind of break it was, what the patient said, and basically it was two years prior. I just read my notes, and I had no independent recollection. Second time I got called as a fact witness, it was on a burn patient in the urgent care that I had seen, and I was an attorney by then. And I was so much more comfortable, in fact, so comfortable that I said to the attorney, “I’ll be great to be a fact witness, but if you ask me any expert opinions,” because I’ve also done expert work, so I have an expert witness CV. I said, “If you ask me anything that requires an expert opinion, you’re about to get a huge bill from me.” And the difference being, the patient came in, told me this is what happened, I diagnosed him with a second-degree burn, I did the following, and this and that. But if they had asked me a question such as, “Well, doctor, will this leave a scar, in your experience?” That’d be an expert opinion. They didn’t ask me anything like that. They just wanted to know what happened in that urgent care visit. And actually, I was looking forward to them asking me expert questions, but I think most physicians would not have been so comfortable had they not had the experience of understanding that, you know, I’ve been practicing law now 20 years and this was probably 5 years ago. So, by then I was very comfortable in knowing I’m not going to get tripped up. That’s not why they wanted me there. And I didn’t ask my malpractice carrier to have a lawyer. I told them that I’m being deposed, but I didn’t tell them I needed a lawyer. I was fine. They offered one. I said, “No, I’m good.”
[20:15] Steve Yeah. Well, that’s, I mean, that’s good. Like I said, there’s definitely a lot of the psychology behind having to prepare for a deposition and what it means for your licensing and all of that. So, covering that with physicians is always one of the big things, to try to alleviate that. Because like I said, the first time you did it, you were really nervous. The second time, not so much. But it was because you had gone through that process. And that not knowing part, that really causes a lot of stress and anxiety.
[20:40] Paul And it’s not even guessing. I mean, I’ve deposed a lot of doctors, defendants, and treating physicians. And when I’m doing the treating physicians, it’s not even on my mind to get them roped in as becoming a defendant. I just want to know what happened when they were treating the patient. But I realize I had no intention of making that guy a defendant. I’m pretty sure the other attorney who was deposing me as a treating physician wasn’t either. They just wanted what happened there. But I think you’re asking also about the defendant doctors. What’s going through their mind when they get hit with a lawsuit, right?
[21:07] Steve Yeah, definitely. Definitely defendant doctors too, and working with them.
[21:07] Paul So there’s so many things. Your identity as a physician, right? It’s a profession. So, the first thing you get is, “How dare they sue me. I did my best.” And to be challenged with that is a hard thing for a physician to take. They start to go, there’s so many levels, right? There’s “How dare they? They must just be greedy and want money. That’s all this is.” And then they start to hear about standard of care from the defense attorney, and they go, “Yeah, that’s right. I’m not held to be perfect, and this patient, I did my best, and they’re going to sue me anyway.” And then there’s the self-doubt that can kick in, because, you know, late at night or whatever, 2 in the morning, they’re thinking about this going, “Did I do something wrong? Did I really hurt somebody? Oh my goodness, maybe I did. Maybe I did do something. And should I be a physician anymore?” All of a sudden, their whole life choice became, “Maybe I’m not good enough to do this.” And no, their defense attorney is not going to talk to them about that at all. Their defense attorney is just going to keep telling them that they didn’t do anything wrong. “You didn’t breach the standard of care. We got this. Don’t worry.” They get worried about the licensing, right? “Am I going to lose my license?” Very rarely will that happen, unless you’ve done something egregious like intentional. You can make mistakes. Now, if you make the same one five times in a row and the board finds out about it, yeah, you might have a problem. But once, twice, no. You’re allowed to make mistakes. “Will all my other colleagues find out about my lawsuit, because it is public?” Maybe, but they have a fear that, “Oh, they’ll never send me patients again.” Well, guess what? There’s an old saying, once you practice long enough, if you haven’t been sued, it’s not a question of if, it’s when you will, if you see enough patients. We don’t tell each other that as physicians. So, you think no one around you has been sued because they’re not going to tell you. And you don’t look it up online and look for court cases. But if you get some friends who tell you, “Yeah, I was sued and this is how it went,” you’ll find out probably the colleagues you’re so afraid of, that aren’t going to refer to you, they may have been sued, too. And it might have been successful for them or not, but their insurance took care of it. They got to continue practicing. You didn’t know that they were sued, and you kept sending them patients. They’re probably not going to even know that you were sued, and they’re going to keep sending you patients. It’s not a life-ruining event in most cases, I should say, right? I mean, there’s high-profile things, but we’re talking about the average medical malpractice case.
[23:34] Steve Yeah. You know, and I think one of the things that you said that’s interesting to me is how attorneys won’t spend that time telling the doctors, or worrying about asking the doctors about, “How are you sleeping? How are you handling it? What are your fears? What are your concerns?” It’s more or less, “Let’s just talk about how you didn’t deviate from the standard of care.” What else has been some other things you’ve seen, maybe from that defense attorney perspective, or just from an attorney perspective working with physicians, that maybe they should re-evaluate and rethink about, and look at it from a physician standpoint rather than from the attorney standpoint?
[24:10] Paul Well, that’s an interesting question. Is that the attorney’s job in a way, too? Like, sure, it’d be nice to be a holistic practitioner as an attorney. Plaintiff’s attorneys have a couple of things that defense attorneys don’t. One, they get to select their clients. If you kind of just get a bad feel on someone, you just kind of maybe just don’t like them, or you think that they’re too dramatic, or they’re expecting too much, they want a million dollars and you know the case isn’t a million dollar case, you can just say no, go find somebody else. Defense attorneys get assigned cases, and they take what they got, whatever comes through the door. Kind of like when I’m in the emergency room or urgent care, I had to treat whatever patient came through the door. As an attorney, I get to pick and choose on a plaintiff side. On a defense side, you don’t. And you also get a lot more work as a defense attorney. You’ll have a hundred cases on your docket at any time, where a plaintiff’s attorney might have, you know, 10. So you don’t have that kind of time to spend with them. And I find that sometimes, you know, I’ll spend, by the time you go to trial in a case, maybe two years, my client and I know each other really well. We’ve spent countless hours talking, prepping. I find that defense attorneys just don’t have that luxury to do that. And the few moments they do get to spend, they’re going to do depo prep. They’re not going to say, “How are you sleeping?” And frankly, I don’t know if that is their job, right? But it would be nice if they could, because that is, I guarantee, what’s going through that doctor’s mind. And somebody like an attorney should be able to tell them, rest assured, it’s not as bad as you’re thinking. It’ll also make them do better in the deposition. They’ll be more relaxed and more comfortable. And realize, tell the truth, you’ll be fine. Especially with electronic records, which is a whole thing I can tell you, it’s changed everything. You cannot forge records or change records like you could when it was paper and pen. Those days are long gone. Electronic records keep track of every little thing, and who did it and when.
[26:06] Steve Yeah. Let’s, you know, so I want to move on, in a similar kind of vein to what you were talking about, about how things have changed, but I want to talk a little bit about now moving into your attorney role. So, you’ve been practicing for 20 years now. You know, what have you seen as far as the legal landscape, the changes? I mean, I’ve haven’t been in this, I’ve been in since 2007. But, you know, in and out. What have you seen from the legal perspective, not necessarily the litigation consulting perspective, for the last 20 years?
[26:39] Paul So I would say the thing that is now upending both fields is AI. That’s the biggest change. I’m actually giving a talk on AI and medicine being the standard of care next month. Because there’s one program that I’m using now, which is actually free to licensed healthcare professionals. It’s almost no excuse not to have it, it’s free. If I don’t use it and it would have picked up, is that the standard of care? Did I breach the standard of care by not using it when, say, 60% of physicians are using it? If I use it and it’s wrong, who’s liable? I can’t sue the AI companies right now. And I could talk on that for hours, but that’s changed everything. And it’s also changing the legal perspective. These AIs are writing our motions, writing our complaints, all of our everything. You can upload a motion for something and say, “Draft me an opposition,” and it will. And a lot of times it’ll do it really well, and then you just go through it on your own. Of course, we all hear about case hallucinations and things like that.
[27:42] Steve Yeah.
[27:42] Paul But one of the things you picked up earlier, let’s go back for a second about, “Oh, I missed that blood pressure.” I can upload 1,000 pages of medical records, and there are programs that are designed for helping lawyers with medicine, and say, “Tell me every time the blood pressure was over 120 over 80. I want every instance of it.” And within 2 seconds, it’ll spit out the times and dates of every time the blood pressure was over this, or the temperature was over 100, or whatever. Which doctor saw this patient and when? I can hit AI and say, “Dr. Smith saw this patient 16 times while he was in the hospital,” and these are the times and these are the doctor’s notes. I don’t have to pay somebody or do it myself, going through those medical records. So now think about, that’s one thing live during your deposition. “Doctor, did you at any time notice the blood pressure was X over Y?” “No, I don’t recall that.” Boom. “Doctor, I’m going to point you to March 3rd, when you noted the blood pressure being there.” No attorney probably could have done that on the fly. That’s changed. And now the doctor is going to get hit for something in a thousand pages of records that happened three, four years ago. It’s really changing everything. Also, expert opinions. I could upload the medical records and ask if the standard of care was breached, before I spend the money hiring an expert to get on board. If it says no, this is clearly an acceptable risk of the procedure or something, I could save the money as a plaintiff’s attorney and not hire an expert, and tell the client, “Yeah, I don’t think you have a case here. I’m not willing to spend the money.” Because as a plaintiff’s attorney, you front the cases, which are very expensive. As a defense attorney, you could do the same thing, and then say, “Which experts are publishing papers on this exact topic right now?” You might pick the expert in your bank that is the best one for it. There’s just so many uses. It’s changing everything, like on a daily basis.
[29:34] Steve When you talk about hallucinations, though, I mean, how accurate is it? So, if you say, “How many times was it 120 over 80?” and it tells you 12 times, I mean, is it 12 times? Is it pretty accurate?
[29:45] Paul Yeah. Those aren’t the hallucinations I’m talking about. The hallucinations in the legal thing that everybody’s afraid of right now is AI tends to make up cases. Completely made-up cases, like Smith versus Jones 1989. And it’s so bad that the judges are catching people. And there was actually a judge who wrote in his orders, and he wrote up a detailed opinion using AI, and it hallucinated cases. It wasn’t picked up until the appellate court. One of the researchers at the appellate court said this judge didn’t even do his own work, and he got admonished. I’m not sure if he got knocked off the bench or what. But it takes five minutes to do something that would take you 10 hours to do. And it’s become, you’ll probably get away with it nine out of 10 times. So those are hallucinations. But as far as factual hallucinations, no. Because it’s actually reading the chart. You’re giving it the world that it has to work in. You’re saying, “In this chart,” and these are specific AIs that are designed to do that, “In this chart, find me the following.” If you’re asking it for an opinion, that’s different. Then you might get a hallucination.
[30:43] Steve Gotcha.
[30:45] Paul Facts versus opinions.
[30:52] Steve Okay. You know, and I want to, before we move on and really talk into mediation, you know, we have a lot of listeners who are maybe 5, 10 years in to practicing, and so I want to pick your brain a little bit. You know, kind of what are a few things that you’ve seen, nuggets of wisdom, that you could impart on some attorneys who are maybe earlier in their career, some missteps maybe that you’ve made, to help them not make those?
[31:19] Paul So I am early in my career in mediation. It’s only been two years.
[31:22] Steve So, well, before we get to mediation, we’ll talk about you as an attorney. Yeah, as an attorney, for 20 years. What have been some things, maybe some potential missteps that you yourself have seen or made, and just said, “You know what, I’m learning from them. Let me impart this widom.”
[31:37] Paul The first thing is that it’s a business. And I had a lot of mentors at the beginning, and it was so hard to listen to them because you’re so eager to get clients when you’re starting. Hey, client selection. Client selection is everything. Especially on the plaintiff side, because you get the say, and on some of the other cases which are not contingent, where I do defense work for certain clients too, you can say no. And yes, I know that we have bills due and this would be a paying client, but if you get a bad feeling for whatever reason, they’re unreasonable, they want a million dollars, or they refuse to pay a penny, and you know darn well that they are going to pay at the end of this, or that the case is only worth nothing compared to a million, say no. Send them off quickly. Do not take that client. And to this day, you still try to do that. And it’s still hard to do sometimes when someone comes in with what could be a good case. If you get that bad vibe, say no. The other thing, don’t overextend yourself. If you have a smaller firm, make sure that you only take the cases that you can really do. You don’t want to be going, “Oh my goodness, I have three things to do, and I only have the time to do one of them.” What I liked a lot about my doctor job was I showed up, I did it, and I left. Whether it’s ER or urgent care, I get paid by the hour, I’m done. The law practice never ended. There’s always more you can do for everybody. And you’ve got to work within budgets. If a company is hiring you, they might have a bigger budget, you can do a lot more for them. But if a small business or an individual is hiring you, you have to be able to budget and talk to people about, “Hey, we can’t do these things. You can’t afford it. So, we’re going to do the best we can with what we have here.” You focus on the practice of law but forget the business side of it. And I didn’t want to be a businessman, but then I ended up, because I was older, starting my own law firm. The copier goes out, it’s me or my partner Nathan. One of us has to call the copier company and decide, “Do we need a new one or are we going to try to fix this old one?” And I’m like, that’s not… Yeah, you’ve got to really expect to be doing all that, or you can go work for a big law firm where you’re just told, “This is how many hours you’re going to pound out per month. Do it, or we’ll find someone who can.” There’s that kind of law, too, which I can’t imagine doing.
[33:57] Steve Yeah. No, and I think, like you said, one of the big things, and it even happens in our business too, is like you said, it’s really difficult to shut it off, right? This whole idea, like you said, as a physician you could punch out and then kind of go home, but in the legal industry it never stops. It’s weekends and nights and Friday evening emails, and just trying to balance that time.
[34:16] Paul You can always polish a motion up. You can always do some more research. You can always prep your client more. It would never end. You have to be able to say, “Good enough. I’m done.”
[34:27] Steve We’ll continue my interview with Paul Molinaro in the next episode of the Litigation Psychology Podcast.