Beyond the Verdict: What Counts as a Defense Litigation Win Today

For years, the gold standard of a defense litigation win was simple: go to trial and get a favorable defense verdict. That outcome was tangible, satisfying, and easy to measure. But times have changed. Today, 95–98% of cases resolve before trial, and the definition of winning in litigation has evolved. Especially in complex, high-risk industries like medical malpractice. What constitutes a win for the defense today is more nuanced and strategic than before.

A Defense Verdict Is No Longer The Only Way to Define a “Win”

Outlier verdicts make headlines, but settlements quietly drive the majority of outcomes. And while a $100M jury award gains attention, it’s the aggregation of quietly overpaid settlements, often well above reserve, that cumulatively costs clients more.

As one defense attorney put it, the staggering number isn’t the nuclear verdicts, it’s all the nuclear settlements we’re not talking about. That’s why defense litigation wins have to be defined more holistically with the focus on the balance of risk, reputation, all litigation costs, and the psychological toll.

The Client’s Definition of a “Win”

The definition of a win depends heavily on the client. In medical malpractice, for example, a physician’s professional future is on the line. Even a small settlement can trigger mandatory reports to the National Practitioner Data Bank and licensing boards across multiple states. That can mean years of professional damage for a provider who never even sees the inside of a courtroom. For these clients, a true win might look like early dismissal, zero payment, no media coverage on the case, confidentiality provisions that prevent future advertising, and minimal psychological and career disruption.

Dismissals still happen, often due to an aggressive discovery strategy or early case exposure of liability gaps. But when they don’t, defense counsel must aim for an economically palatable resolution that avoids reputational damage. That means not just what’s paid, but how it’s framed, and how quietly it disappears.

Early Case Preparation Is an Underused Defense Tool

Too many defense cases still follow the wait-and-see model, where readiness matters only weeks before trial. That’s a mistake and a major contributor to nuclear settlements and oversized verdicts. The better option is to do an early case assessment utilizing focus groups and rapid-cycle jury research. Mock trials and focus groups can be used by defense teams years before trial. Focus groups can even be conducted pre-suit to identify potential risks and early resolution opportunities. This helps to avoid getting trapped in a cycle where the medical choices or other decision-making steps seem easy to defend, but optics tell a different story.

Consider this example: A physician completed a surgery but delayed documenting the post-operative note for 2.5 weeks and subsequently amended the record after litigation commenced. While the clinical care was defensible, focus group jurors might perceive the recordkeeping as deceptive, which significantly undermines credibility.

That’s why the use of pre-litigation focus group testing is growing to effectively assess the impact of optics, evaluate responses to video clips of key witnesses, and understand how jurors perceive the story before it’s too late to change strategy.

The Narrative Comes First and Then the Medical Approach

Plaintiffs lead with emotion and narrative. Defense teams too often lead with logic and evidence. A strong defense on the clinical facts means little if the story falls apart under cross-examination. Defense attorneys need to focus their strategy on three main things: get the optics right early, control the narrative, and develop thematic consistency across every deposition and witness.

Defense wins are about minimizing cognitive dissonance in jurors, not just proving causation or standard of care. That means using data and psychology to anticipate things that are damaging to the defense before trial preparation begins.

The Emotional Cost of Litigation

Another factor in defining a win is the minimal toll on defendants. Medical professionals caught in litigation face years of stress and uncertainty or professional limbo. Many can’t move on with their careers or their lives until the case resolves.

Even without a final payout, being trapped in litigation takes a toll, and too few defense strategies account for this. A win includes minimal delays during the litigation process and preparation that addresses emotional affectation, not just factual accuracy.

Readiness Isn’t Just Trial Preparation, It’s a Strategy

Plaintiff firms are selective. They may file fewer cases, but work each of their cases hard. Many defense firms claim they “prepare every case as if it’s going to trial”, yet wait until 4 weeks out to call in expert help. That gap in preparedness often decides who wins.

Defense firms must prepare cases early. If it’s headed to settlement, that strategy gets lean and efficient. But if trial is on the table, it’s all-hands-on-deck: early witness preparation, pre-deposition focus groups, narrative development, and regular engagement with the client. Consulting with litigation consulting experts in psychology is the best way to prepare the right strategy.

The Defense Litigation Win

What constitutes a win in today’s defense litigation is no longer a cookie-cutter uniform answer. Although verdicts remain a visible benchmark, they are no longer the sole measure of success or failure. While a complete dismissal without payment remains the ideal outcome, success is often defined more narrowly. A favorable resolution might involve a confidential settlement within reserves, no media or social media exposure, and minimal reputational or emotional impact on the practitioner.

Get the Win with Courtroom Sciences

Real wins are strategic and quiet. Strategic risk management and emotional considerations are just as important as winning verdicts, if not more. Defense attorneys who understand this shift and act early to address it consistently achieve outcomes that deliver real wins and truly serve their clients’ best interests.

Courtroom Sciences helps attorneys efficiently navigate litigation by providing psychological expertise, science-backed data, and expert support for all phases of litigation. Learn how CSI’s litigation consulting experts can improve outcomes for your next case.

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