How to Feed a Lawyer (and Other Irreverent Observations from the Legal Underground)

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John Day

In every case - and I mean every case - that I have had set for the trial in the last 20 years the defendant has moved for a continuance at least once. In my last trial -- a 9-day med mal in December - defendant moved for a continuance after losing a key motion in limine. The fact of the matter is that most defendants don't want to try good cases - they want to postpone Judgment Day to wear down the plaintiff and the plaintiff's counsel.

Plaintiff's lawyers can avoid continuances by asking for scheduling orders and making sure that they do what they are supposed to do when they are supposed to do it. You can't hold a defendant's feet to the fire if you haven't complied with the scheduling order, haven't supplemented discovery on time, submitted inadequate expert disclosures, etc.

My point: the AG action excuse is just that - an excuse. Merck does not want to try this case.

Mark Wahlstrom


Could agree with you more. My expertise is in the area of negotiating settlements and over the years you do get a vibe for whether or not a defendant wants to try a case. Merck is talking the right talk, but you just know they don't want to try these, but they have to take a shot at them and hope they win, or they are dead meat. At the very worst they need to delay the inevitable and hope the science or PR improves their position in the coming months.

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