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When You Settle Your Medical Malpractice Lawsuit, Do You Get a DIPLOMA or a Certificate of Completion?

Sat, 04 May 2019 22:23:00 EST

The answer is no, you don't.
Even though you've lived through two or three years of hard-fought litigation, you don't get a certificate.
You don't get a medal.

You don't get a diploma.
You don't get a pat on the back for a job well done.
You don't get a congratulatory letter from the doctor you sued.

You don't get a certificate of completion saying you've now graduated and can move on with your life.

You don't get credit for going the distance in your lawsuit and then settling before trial.
Nobody will give you a framed certificate thanking you for your contribution to the legal community.
What the heck do you get when you settle your lawsuit?

I'll tell you what you get...

You get piece of mind.
You get a guaranteed amount of money in your pocket.
You get to wipe out the uncertainty of going to trial and rolling the dice.

You get comfort knowing that the defense paid you money to compensate you for all the harms, losses and damages you suffered because of your doctors' carelessness.

You get the satisfaction knowing that you won't have to appear and testify in court during a trial.
You get the satisfaction knowing that you were right all along.
But you knew that.

You knew that your doctor violated the basic standards of good medical care.
You knew that your doctors' carelessness caused you harm.
You also knew that your injuries were significant and permanent.

You don't need a diploma saying that you 'graduated' from your lawsuit and the court system.
You don't need a 'certificate of completion' saying you've lived with this lawsuit for almost three years.
You don't need any of that!

Why not?
Because you're getting something much better.
You're getting a check from the doctors' insurance company to pay you for your injuries.

That check is your 'certificate of completion'.
That check is your 'diploma'. 
That check is evidence of all your hard work and sacrifice which confirms you were right all along.

Do you really need more than that?
I'd argue that you don't.
Sure your lawyer will give you a big hug and wish you luck when you pick up your settlement check.

Sure he'll tell you that it was the right choice to settle.
He'll make you feel as if it was all worth it.
It was.

Because you achieved the result you were looking for.
It took you a few years to do it, but you did.
Really smart lawyers will send you a letter thanking you for allowing them to participate with getting you get justice.

Really smart lawyers will confirm you did the right thing and wishing you the best in the future.
Really smart lawyers will also explain the tax implications of your settlement money and recommend you speak with financial advisors immediately. You'll want to protect that money so it lasts you for many years to come.

As for a 'diploma' or a 'certificate of completion' when you finish your lawsuit?
Face it...you don't need another piece of paper to remind you what you had to go through in order to obtain your settlement.

To learn more about this topic, I invite you to watch the quick video below...

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Doctor Called My Client a WIMP During His Pretrial Deposition!

Sun, 13 Jan 2019 09:41:00 EST

The doctor came right out and said it.
I'd never heard a doctor say anything like this during a pretrial deposition.
This was sworn testimony.

This was an answer to a question I asked him.
The doctor seemed almost ashamed he was saying this.
But when he said it, it was if he just had a burden lifted off his shoulders.

He looked glad that he said it.
I think the shock registered on my face.
I mean who goes around calling someone a WIMP?

Especially your doctor.
As he said it, I was wondering how this would look in front of a jury.
If I was shocked, I could imagine a jury being shocked as well.

The problem for me was that the doctor explained WHY he felt my client was a wimp.
He explained that he came to him months after he suffered his injury.
The damage had already occurred. 

There was little the doctor could do to fix the problem.
But he was going to try.
He gave the patient two options.

Surgery or no surgery.
That was it.
Either live with the problem or try to fix it.

He explained the patient was wishy-washy.
He kept going back and forth about what to do.
He wasn't sure.

Finally, the patient made a decision...
To have the surgery.
Ok, that was somewhat decisive.

But then, after the surgery, the patient wasn't complying with the doctors' post-operative instructions.
The doctor told him specifically what he wanted the patient to do.
Follow up with therapy.

Have them do the following exercises and here's why.
Follow up with these other physicians and here's why.
At first the patient did what he was told to do.

Months into it, he slacked off.
No explanation was given.
The doctor told him why it was so important to follow through with his instructions.

The patient didn't listen.

Didn't give the doctor a reason either.
That was bad.
Now the patient complained of more problems than he went in with.

The doctor reminded him he needed to follow his instructions.
That's why he has more problems now.
"Your client was a wimp!" the doctor exclaimed.

"He couldn't make a decision."
"He didn't do what I told him to do."
"I feel bad saying this but he really was a WIMP!"

I almost wanted to tell the doctor "It's Ok, I understand."
But I didn't.
The more I listened to the physician's explanation about WHY he was calling my client a wimp, the more I understood that this doctor did nothing wrong.

A few weeks later when I received the transcript back from the court reporter who was recording all of my questions and all of the doctors' answers, I sent it on to my expert to read.

I knew what my expert was going to say.
I knew this case never should have been started.
But I wasn't the one who started this case.

I inherited this case from another attorney.
I suspected that I'd soon be withdrawing from this case.
All because the doctor called my client a wimp...sort of.

The reality is that the doctor had no liability here.
Because we could not show that the doctor violated the basic standards of medical care, I could not proceed forward with his case.
I had no choice but to withdraw as his attorney.

The fact that the doctor called my client a wimp simply confirmed that this case had no merit.

To learn how an attorney in NY evaluates a medical malpractice case, I invite you to click below...

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The REAL TRUTH About Lawyer & Client Testimonials Used in Marketing and Advertising a Law Firm

Sat, 20 Oct 2018 08:13:00 EST

"He did a great job for me. You should hire him. J.S. from Florida"
"The paralegal I dealt with was so nice..."
"He got me so much money! If you have a legal problem, you should call him too!"

Do these 'testimonials' sound familiar?

They should.
It's because so many lawyers use them to market their law firm.
So many attorneys simply accept any comment they get and put it on their website and their marketing materials.

9 things you NEED to know about testimonials plastered all over an attorney's website and videos:

1. Is this from a REAL person or is it just made up?
2. Is this from a former client who had a REAL problem?
3. Is this from an existing client?
4. How does their story relate to your legal problem?
5. Where is this person from?
6. When was this testimonial given?
7. Do they talk about how much the lawyer got them or simply talk about a good result?
8. Why don't any lawyers talk about the cases they lost?
9. How come there are NO testimonials from clients where the outcome was NOT good, but the client still liked the attorney?

First, what exactly is a 'testimonial'?
It's really someone 'testifying' or giving testimony about their experience with their attorney.
It's not just for attorneys.
It's for every product and service you buy today.

When you go online to Amazon and are considering making a purchase, you can read hundreds and thousands of reviews from people who actually bought the same product and read what they thought about the company and the product. Many people make their buying decisions based on what other people have said about a particular product.

It's often helpful to know whether the product was crap or a high quality item that performed as advertised.
Getting good reviews are crucial when a consumer is considering hiring you or buying your product.
But with attorneys, there is no one website that gives honest reviews about particular attorneys and the clients who hired them.

Sure there are review sites out there like Yelp and Google reviews and some clients take advantage of using them.
Some clients use Yelp as their way to post negative reviews of doctors, lawyers and other professionals knowing that people will read them and hopefully make their decisions to use or not use them based on their review.

When a lawyer uses a testimonial to promote his legal ability and experience, he will ONLY use a favorable review.
Makes sense right?
The common thinking is that if you're considering hiring this legal wizard, you obviously only want to go to someone who is experienced and has handled cases just like yours.

It would certainly help you decide whether to hire this lawyer if other clients had great things to say about their experiences with this attorney. The attorney knows this. He's going to post ONLY glowing, positive reviews on his website and in his marketing materials.

That's ok. 
It might even help you decide if this attorney is right for you.
But before making that big decision, you need to look at that testimonial carefully.

WHO is making that testimonial?
Does it list their full name?
Does the attorney list the town and state they live in?

Is there a way for you to reach out to this satisfied client to talk to them about their experience?
In most cases, the attorney does NOT include contact information for you to reach out to this client.
Ask yourself, 'why not'?

Some testimonials include only a first name.
No last name.
No address.
No town.
No state.

How do you know if this is real?
How do you know if this person really was a client?
What information does the lawyer give you about his satisfied client?

I understand that some clients are reluctant to share their name, address or details about their case.
But don't you want to know that information in order to decide if this person giving a testimonial is reliable and trustworthy?

You don't know this person.
You don't know anything about them at all.
Why should you believe anything they say if they don't disclose certain information that gives you a good sense this person is real and truly went through a similar problem.

How in the world can you tell if this is simply an actor who is hired to promote the lawyer in an ad, in an article or on a website?

The problem is that you don't know.
You don't know anything about this person giving the testimonial.
In order to satisfy your natural curiosity and overcome your natural skepticism, you want more details about who is giving this to you.

NOT EVERY LAWYER GETS A GOOD RESULT.
EVEN GOOD LAWYERS SOMETIMES GET BAD RESULTS.
WHY DON'T YOU SEE TESTIMONIALS FROM CLIENTS WHO GOT BAD RESULTS?

Let's face it. It's impossible for all these attorneys to ONLY get good results. It just is. That's a fact of practicing law.

One side wins.
The other side loses.
There may be many reasons why an attorney loses a case.

It may be a 'bad' case.
It may be there's no liability.
It may be there's no causation.

It may be that the damages just aren't there.
The attorney may have done the best job he could with the facts that he had, but for some reason, the jury just didn't buy your argument.

There are instances where the client is grateful for the chance to work with this lawyer.
There are instances where the client is happy they had their day in court.
Certainly there are times when the client loses but is still satisfied with the work his lawyer has done.

Why don't you see testimonials from lawyers about this scenario?

I'll tell you why...
It's because lawyers are TERRIFIED to post less than stellar reviews from clients.
Lawyers are AFRAID  to post reviews that don't show good results.

The FEAR is that if a potential new client thinks that he didn't do a good job or got a bad outcome, that means there's a likelihood he'll get the same result for them. He's going to scare off a potential new client.

Think about that logic.
If every attorney ONLY posts positive reviews about the great experience and great result the attorney achieved, then it gives the potential new client the impression that this lawyer ONLY gets great results. The person looking to hire an attorney may get the sense that this lawyer can do no wrong and he can pretty much guarantee that he can get a great result for them too.

That would be impossible.
No lawyer can ever guarantee a result.
Ever.

I have yet to see a single lawyer post a review or a testimonial saying something like this...

"I went to attorney John because I'd heard great things about him. He had gotten great results for so many other people in my situation. Unfortunately after trial, the jury didn't see it our way. I hated the result but I still loved attorney John. He made me feel good about myself and my case. He helped me understand what I was going through and my legal options. He told me straight out what the likelihood of success was and I believed him every step of the way. I didn't like the result, but I liked the hard work, dedication and perseverance of this lawyer..."

Even though the client didn't get a great result, he still had nice things to say about the attorney.
Why don't you EVER see testimonials like this?
It's because lawyers are TERRIFIED to use something like this in their marketing and advertising.

They don't want to be seen as having lost a case.
They don't want to be seen as getting a bad result.
They're worried that it will SCARE off potential new clients.

If you're considering hiring an attorney to help you with your accident case, your medical malpractice case or wrongful death case, ask to speak to some of the attorney's clients who didn't get the results they were hoping for. See what the attorney says when you ask "Have you ever lost a case before?" "Why did you lose that case?" "Can I speak to the clients in cases that you lost?"

The answers to those questions will tell you a lot about the attorney you're considering hiring.

Before you decide to hire a medical malpractice attorney in New York, ask yourself what type of client you are and watch the quick video below...

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"Judge, my opponent is a Whining Nasty B*&ch!" Your Lawyer Yells Out During Trial- Is That a Proper Legal Objection?

Tue, 26 Jun 2018 08:49:00 EST

Ha! That would be awesome if that were a proper legal objection.

"Judge, the defense attorney is a whining little b*&ch and everyone in the courtroom knows it," your lawyer screams out. Well, if EVERYONE in the courtroom already knows it, what benefit can come from the lawyer jumping up out of his seat and now yelling it out loud to everyone in the courtroom? What's the judge going to do? Tell you yes, even I realize that this lawyer is a whiner and complainer?

Ah, no. That would be a big no.

First, an attorney making this motion is likely frustrated. He's frustrated that the opposing lawyer is whining. He's annoyed and has clearly reached his breaking point. But here he makes a tactical mistake. If he knows the defense attorney is whining and he sees that the jury knows he's whining and even the judge knows it, why divert everyone's attention from it just to interrupt it?

What will he accomplish by yelling out "OBJECTION JUDGE! HE'S WHINING!"

The answer is very little if anything.

Believe me, there are plenty of lawyers who fit in this category. There are plenty of attorneys who are annoying during trial. Whether it's intentional or not is another story. The point is that when you stand up and make an objection, it's supposed to be because the lawyer is doing something that's causing you concern.

"Judge, that's an improperly worded question."
"Judge, that's irrelevant."
"Judge, he's badgering the witness."
"Judge, he's asking leading questions."

Those are proper legal objections. Not "Judge he's being a whiny little baby."

By the way, what's the purpose of an objection during trial?

It's really to let the judge know that something's wrong. It's to alert the judge that there's a problem and he needs to decide whether to allow the question or evidence in. It preserves an attorneys' right to appeal if he makes the objection at the time its' happening. Otherwise, if he loses the case and appeals, claiming that the judge shouldn't have allowed certain testimony, the higher court will look to see if he objected during trial. If he didn't they'll say he waived his right to appeal that issue and can't do it now.

"Judge, we were never notified that they were bringing in this medical expert!"
"Judge, I move to preclude this witness since they never exchanged his medical report as they're required to do."
"Judge, I ask you to strike this witness' testimony as he's not qualified to testify on this subject."

Now the judge has to rule on each objection.

If the judge agrees with the attorney making the objection, he'll say "Objection sustained." That means that the question cannot be asked or the evidence will not be allowed in. It means he agrees with the attorney who raised the objection.

If the judge does not agree with the lawyer making the objection, he'll say "Objection overruled." That basically means that he knows the attorney has a problem with a question or a witness or evidence and he doesn't agree that it's a problem. He's overruling him. The judge can do that. That's one of his main functions during trial.

To learn more about trial objections, I invite you to watch the video series below...

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WHAT IS A NON-PARTY DEPOSITION?

Sat, 23 Jun 2018 10:04:00 EST

First, a deposition is a question and answer session that’s given under oath.

It takes place in your attorney’s office.

There’s no judge there.

There’s no jury there.

But there is a court stenographer there.

To record all the questions you’re asked and all the answers you give.

Those questions and answers get transcribed into a booklet known as a transcript.

The answers that you give carry the same exact weight as if you’re testifying at trial.

A party to the lawsuit is either someone who is bringing the lawsuit known as the plaintiff, or someone who is being sued, known as the defendant.

During the lawsuit each attorney has a chance to question ‘the parties’ to the case.

That means that the person bringing the lawsuit will be questioned by the lawyer for the person you have sued. On a later date, I will have a chance to question the person you’ve sued.

A deposition is considered pretrial testimony.

It’s sworn testimony given way before you ever get to trial.

If done correctly, you can lock the witness into their story.

In a medical malpractice case where I am questioning the doctor you sued, I have many different goals and strategies to get the doctor to actually admit that if certain things were done, then that would be a violation from the basic standards of good medical care.

There are many times during a lawsuit where a witness observed some important facts surrounding your case. One side may want to question that witness to learn what he saw, what he did and what he observed.

Since that witness is neither the person bringing the lawsuit and is not the one being sued, that witness would be considered a ‘non-party’ witness. That’s all it means.

There are different ways to get a non-party witness to appear for pretrial questioning.

One way is to subpoena them to appear.

Another way is to get them to voluntarily appear.

Let’s say you sue your doctor for medical malpractice.

You’ve also included your spouse in your lawsuit.

The three ‘parties’ to the case are you, your spouse and the doctor.

Let’s say your mom accompanied you to your doctor visits.

She was present for each visit and heard and participated in the conversations with your doctor.

The attorney for the doctor wants to question your mom to see if she’ll corroborate what you’ve said took place.

Maybe the defense lawyer thinks she has other useful information that will help his case.

He asks your lawyer if he will voluntarily produce your mom for pretrial questioning.

In many cases, the answer will be yes.

“Sure, I’ll produce her for deposition. But only after the ‘parties’ have been questioned at their own deposition,” your lawyer says.

When that day comes, your mom is considered a non-party witness.

On the day of her deposition, your lawyer will prepare her for the types of questions she’ll be asked. The fact that she’s not a party to the lawsuit doesn’t really matter since she’ll still be giving sworn testimony about what she knows.

That testimony can then be read to the jury at trial.

That testimony can be used to cross examine another witness at trial.

That testimony can be used to cross examine your mom at trial.

What does it cost to do a non-party deposition?
Whoever wants to question the non-party witness will hire a court stenographer.

He will pay her.

Going back to the example above, let’s say the defense lawyer wants to question your mom about what conversations took place between his client, the doctor and you. Your mom agrees to come in for a question and answer session.

During that deposition, you can be there, since you’re a ‘party’ to the lawsuit.

Your lawyer will be there.

Your mom will be there.

The defense lawyer will be there.

And the court stenographer, also known as a court reporter, will be there.

The defense lawyer will be paying for the court reporter.

Depending on how long he questions her, the transcript could easily cost hundreds of dollars.

Now you know what a non-party deposition is!

To learn what questions you should never ask during a deposition, I invite you to watch the video below...

Have questions about your matter that happened in NY? If you have not yet started a lawsuit and are thinking about doing so, I invite you to call me at 516-487-8207. I welcome your call.

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What Documents Can You Expect to Sign When You Hire a Medical Malpractice Attorney in New York?

Sat, 05 May 2018 07:51:00 EST

You want to hire a lawyer.
To represent you in a case against your doctor.
You want to sue him.

For medical malpractice.
For his medical errors.
For all the medical mistakes he made while treating you.

For the injuries you suffered because of those mistakes.
You search for the best attorney for you.
One who has lots of experience handling the exact type of case you have.

One who has tried many cases.
One who has gotten good results in the past.
One who appears helpful and aggressive at the same time.

You watch his videos.
You read his articles.
You read his online reviews.

You decide THIS is the attorney for YOU!
You feel a bond with him.
You feel like he could definitely help you.

And you've never even met him before.

You call his office to schedule an appointment.
Before inviting you into his office, this lawyer asks you some questions on the phone.
He asks you just four questions.

You want to tell him your entire story.
You want to get it off your chest.
You want to know if you have a good case.

You want to know if he'll take your case.
You know that you have a good case.
You just know it.

As you start to explain what happened, the attorney politely cuts you off.
"I don't need any details yet," he tells you.
"I just need you to answer these four questions," he says cryptically.

"Ok," you say, wondering what questions he's going to ask you.

"When did this happen?" he asks simply.
"That's easy. It happened one year ago.
"Great. Where did this happen?" he asks.

"It happened in New York City at the hospital on 98th Street and Madison Avenue," you say.
"What injuries do you have now as a result of whatever was done wrong?" he asks.
That stops you for a moment.

You were all set to tell this attorney everything that the hospital staff did wrong.
You were prepared to tell him what your doctor did wrong.
You were about to tell him about how you were mistreated.

Instead, he only wants to know what injuries you have NOW.
You think about it for a moment and then begin to answer.
When you're done answering, he then asks his final question.

"Has any doctor confirmed your belief that something was done wrong?" he inquires.

Again, you pause and begin to think.
"Actually, yes. One doctor criticized the care that I received. He said..."
The attorney listens carefully on the phone.

Then, he makes a decision.
"Ok, let's set up an appointment for you to come into my office to discuss this matter in more detail," he says.
You arrive at his office a few days later.

You're invited into his conference room where your attorney greets you warmly.
He spends an hour asking you questions, listening patiently to your answers.
By the end of your conversation, you want to sign up with him.

You want him as your attorney.
He's confident.
He's experienced.

He knows a lot about your type of case.
He knows a lot about medical malpractice cases.
You get along well with him.

BUT...did you know that even though you came into his office to hire him, the attorney was deciding whether to ALLOW you to hire him? He was deciding whether to hire YOU as a client.
You see, a really good trial attorney is highly selective about which cases he accepts.

A really good trial lawyer is very selective about the type of client he accepts.
A case like this will take two to three years to resolve one way or another.
Either by settlement or verdict or a judge throwing your case out.

That means you'll be together for a long time.
Your attorney wants to make sure you're a nice person.
He wants to make sure he can get along with you for the next few years.

Personally, I want to make sure that my new clients are not jerks.
I want to make sure they're not demanding and obnoxious.
I want to make sure that they're respectful of me and my staff.

If I know at the outset that you are just nasty and obnoxious to my staff and to me, then I will politely tell you that I cannot work with you and you need to seek out a different attorney.

It doesn't matter how good your case is.
It doesn't matter what type of case you have.
I have made the decision not to work with clients who are obnoxious and nasty.

Let's say for the moment that I like you and the facts of your case.
Let's say that you want to hire me as your attorney.
I need to do a full investigation to determine if you actually have a valid case.

I need to get all your medical records.
I need to review and evaluate your records.
I then need to have a board-certified medical expert review your records.

My medical expert has to determine if your doctor:

(1) Violated the basic standards of good medical care,
(2) Whether that improper medical care was a cause of your injuries and
(3) Whether your injuries are significant and/or permanent.

If my expert confirms that you do have a valid case, THEN AND ONLY THEN am I permitted by law to start a lawsuit on your behalf.

Now let's get back to the title of this article.
What documents can you be expected to sign once you determine that I'm the right attorney for you and I determine that you're the right client for me?

THE RETAINER COMES FIRST

No, I don't mean what you get after your braces come off at the orthodontist.
My kids got retainers after their braces were taken off.
No, no, no.

This retainer is a document that means you hire me to be your lawyer.
You are retaining me as your attorney.
You need to sign this in order for me to start working on your matter.

This document spells out my obligations to you.
It spells out the attorney's fee in this specific type of case.
It explains what I will do for you.

It explains how I will pay the expenses on your case in order to evaluate it and then to prosecute your case.
It explains how that money will be repaid to me and my firm if we are successful and get you a positive result.
It also explains what happens if we are not successful.

You will be required to sign this before we get started representing you.
You will receive a copy of this for your file.

AUTHORIZATION FORMS COME SECOND

Second, I will have you sign permission slips that allow me to get your medical records.
These permission slips have a fancy name for them.
We call them authorizations.

HIPPA compliant authorizations.
That's just a fancy acronym that means these permission slips are compliant with the rules governing the release of a patient's medical records.
These permission slips will be sent to your treating doctors and hospitals where you received treatment.

If you have a valid case and we file suit on your behalf, these permission slips will also need to be sent to the attorneys who represent the doctor and the hospital.

CLIENT COOPERATION AGREEMENT

When you come into my office, you likely believe that you are there to decide whether to hire me as your attorney.
That's true.
But, my job is also to decide whether I will allow you to become my client.
My job is to determine if you have an open mind and are willing to listen to my legal advice.

My job is to decide if you are willing to make educated decisions based upon my legal advice.
If you know better, then maybe I'm not the right lawyer for you.
If you question every decision and antagonize me, then maybe I'm not the right one for you.

If you suspect that all lawyers collude with their opponents to screw over their clients then your paranoia will not be for me.

One document you can expect to sign will be a client cooperation agreement.
It's really a common sense document.
It basically says 'You agree to cooperate with me in prosecuting your case'.

You agree to provide documents within a reasonable time frame.
You agree to return my calls within a reasonable time frame.
You agree to notify my office if your phone number or address change.

You agree to listen to my advice and make decisions based upon sound legal advice and not what your neighbor told you or what a relative who had a lawsuit told you to do.

CONCLUSION

Now you know the three types of documents you can be expected to sign when you come into an experienced medical malpractice attorney's office to hire him.

To learn how an attorney in New York evaluates your malpractice case, I invite you to watch the video series below...

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The $6 Million Dollar Checks FINALLY Came In- A Cardiac Nightmare in New York

Wed, 14 Mar 2018 00:04:00 EST

This is a true story...

It was a check for $1,000,000. That's one million dollars. It was partial payment on this case I settled.

Then I saw the second check. It was for $5,000,000. That's five million dollars.

The long-awaited check finally came in.
It sat on my desk along with a cover letter saying “Here is your check.” I stared at it.
It had a lot of zeros.

Where it said “Pay to the order of,” it had my name there.
It had my client’s name also on that line.
That check represented the culmination of a long and hard-fought battle against a doctor and a hospital in the New York metropolitan area.

I had seen checks of that size before, but that check was only partial payment for this case.
I was looking for another check that my secretary told me was in my mail pile.

Then, underneath that check, I saw another letter with another check for the same case.
That’s the check I was looking for.
That check was even bigger than the first.

Much bigger. By a multiple of five.
I couldn’t take my eyes off of it.
It was from a different bank.

On the line where it said “Pay to the order of...” my name was on that line too along with my clients.

The amount took my breath away.
I had never actually seen a check with that amount before.
It was exciting.
I couldn’t believe this day had come.

Thinking about these two checks made me realize how unfortunate my client was and how badly I felt for him.
This young man was a superstar salesman.
He worked selling mortgages at the height of the mortgage business.
He was the top producer in a large company.

He had awards, plaques, certificates, honors and recognition among his peers for his excellent sales ability.
His bosses noticed.
He got incentives, bonuses and was a leader at his company.

He was 34 years old.

One day he developed severe chest pain.
The pain didn’t go away.
Two days later, he went to his local emergency room.

They did all the right tests.
They did all the right things.
They kept him for the weekend and then told him he was fine and should just follow up with a cardiologist.

That’s exactly what he did.
He went to a cardiologist the hospital recommended and saw him each month following his discharge from the emergency room.

The only problem was that he still complained to the doctor of intermittent chest pain.
The doctor did more tests and told him he was fine.
“Just exercise and eat right,” was what he was told.

He was only 34 years old.

A few days after the third follow-up visit to the cardiologist, he developed severe chest pain.
Bad pain.
Excruciating pain.
Difficulty breathing pain.

An ambulance arrived and rushed him back to his local emergency room.

Needles were put in his arm.
Blood was drawn out.
Fluids were put in.
EKG wires were attached to his chest and an oxygen mask was placed over his face.

Tests revealed he had suffered a massive heart attack.
Once he was stabilized he was immediately rushed out of the local hospital and taken to a large university-affiliated hospital in New York City where they had better cardiac and surgical services for his condition.

He was only 34 years old.

He didn’t know it at that time, but that massive heart attack killed off 70% of his heart function.
Tests done later at this New York City hospital revealed that to be true.

His doctors tried to project hope.
They knew that keeping his confidence high would yield more benefits than having a defeatist mentality.
Days turned into weeks.
Weeks into months.

He was sent to rehab.
He couldn’t walk.
He had no energy.
He lacked strength.

His heart wasn’t pumping enough blood to his body to sustain the muscles and functions his body required.
His body was shutting down and there was nothing he or any of the doctors could do to reverse it.
The muscle damage to the heart was permanent.

He learned that the only hope of survival would be to get a heart transplant.

He was only 34 years old.

He took a total of 40 pills per day; each one with nasty side effects.
There was a pill to get rid of excess water.
A pill to calm his stomach from all the medications he was taking.
A pill to go to the bathroom.

His life was miserable.
His wife had to map out a litany of medications for him at breakfast, lunch and dinner.

He couldn’t walk more than a few steps.
To go from the couch to the dining room took five minutes and was exhausting.
I know.
I watched this first hand.

He was upbeat but restless.
He couldn’t sleep because every time he lay down, the fluid in his lungs would prevent him from breathing normally.
His life was hell.

Turns out the he wasn’t eligible for a heart transplant because of his co-morbid conditions.
That meant because his kidneys were not functioning well and his lungs were deteriorating, he was no longer a viable candidate since he was too sick.

Transplant patients are ones who are sick, but not too sick so that when they get a transplant, there’s a good chance they’ll live.
If they believe that your chances are low for survival following a transplant, they say “Sorry, we can’t help you.”

So, he had to live his life ‘as is’.
In hell.
Unable to walk very much.
Unable to exercise.
Unable to do all the things everyone else does without any thought.
Not him.

He was only 34 years old. He had his whole life ahead of him. A beautiful wife, a young child and life was good. Until it wasn’t.

He and his wife called me one day.
They thought that maybe one of the doctors who were treating him before his heart was destroyed, didn’t do what they were supposed to. They didn’t know for sure, but had a sense that something went wrong.
That’s when I got involved.

I got the hospital records, the cardiologist’s records, the EKG’s, the echocardiogram results, the stress test and all the lab work.
I read every page of every record.
I too got the sense that something went wrong in the emergency room the very first time he presented with chest pain.

Remember, he was only 34 years old.

I sent the records to a world-class cardiologist for an expert opinion.
I couldn’t believe what he had to say.
I then sent the records to another expert cardiologist for another opinion.
He too said the same thing.

I still didn’t believe it.
I located one of the top cardiac experts on the East Coast and sent him the records.
He confirmed exactly what the two other medical experts said: “You have a valid case and here’s why.”

It turns out that the stress test that was performed in the hospital the very first time was done correctly.
However, there is a computer that interprets the stress test and prints out the interpretation.
The computer repeatedly interpreted the stress test as abnormal.

The cardiologist who interpreted the test read it as normal and disregarded the computer’s interpretation.

Each one of my cardiac experts pointed to specific parts of the stress test that were clearly abnormal.
There was no grey area. 
It was black and white.
Simple really.

Each one asked why this wasn’t detected.
Once it was pointed out to me, I asked the same thing.
I even asked the cardiologist who interpreted that stress test.
His answer: “We commonly disregard what the computer interprets and use our own clinical judgment.”

“Ok,” I thought.
That sounds reasonable.
Except it wasn’t.

I asked the cardiologist to interpret the sections of the stress test that all three of my experts said were abnormal and required action.
This doctor repeatedly stated this was “Normal” and not of any concern.
I left those answers alone since I knew that was a fantastic answer for our case.

During a break in the question and answer session, also known as a deposition, one of the attorneys said quietly that the cardiologist who I was questioning had no idea what I’d just done.

He was right. The doctor had no clue that I just blew their defense apart.

If this stress test had been interpreted correctly, the patient would have had an angiogram to evaluate why the stress test was abnormal. An angiogram is a test where doctors look to see if any of the arteries that feed the heart are clogged or closed.
That’s known as ischemic heart disease.
If an artery is choked off, then the heart muscle cannot get the blood needed to survive and that portion of the heart will die.

If this young man had an angiogram, it would have shown that three of the major blood vessels that fed his heart were clogged.
He would have had elective coronary artery bypass surgery done also known as “CABG” (pronounced ‘cabbage’.
This would have been a triple bypass surgery.
Had the surgery been done before he suffered his heart attack, he would have gone on to live a relatively normal, healthy life.

Despite having no defense, the attorneys fought this case till we were about to schedule a trial date.
Then negotiations started.
This was a very difficult negotiation.
There were lost earnings.

There were future lost earnings and bonuses and incentives.
There were medical bills and expenses.
There was health insurance to pay.

If he lost his health insurance he would never be insured by any other company again since he was medically uninsurable.
There was suffering, agony and pain from the time of the negligence until now and for the rest of his life.
There was the inescapable loss of enjoyment of life.
Loss of services to his wife and the immeasurable loss of a normal dad to a little child.

This man would never be the same.
He’d never be able to work again.
He was going to be on medications for the rest of his life.

His life expectancy was called into question by the defense.
“If he’s as bad as you say he is, then he cannot be expected to live much longer. Therefore, we should not have to pay as much as someone who would be expected to live a long life.”

“Ahh, I get it now. You want to benefit for killing him off early, and don’t want to accept financial responsibility for the fact that your client’s carelessness caused him to be in that position,” I replied.

I continued to stare at the checks on my desk for a few more moments before going to the bank to deposit them.
I filled out the deposit slip, checking to make sure that it had the correct number of places for all those zeros.
I wondered what the bank teller would think as I deposited those two checks.

Would she ask for identification?
Would she call the bank manager over for approval?
I was a long-standing client of this bank for over twenty years.
How long would such a check take to clear so I could pay my clients their settlement?

I walked up to the teller and handed over the two checks along with my deposit slip.
The teller was good.
She was trained not to over-react.
She was professional.

But when she first saw the amount, I saw her eyebrows go up.
A clear indication she was stunned.
She processed the checks without a word, gave me my deposit slip and said “Have a nice day Mr. Oginski.”

I couldn’t help but wonder what she was thinking as she saw the first check for $1,000,000. Her facial expression gave her away when she saw the second check for $5,000,000.

On the walk back to my office I couldn’t help but think how awful my client and his family must feel with all of the medical problems he’ll have for the rest of his life. He was only 34 years old.

To learn more about this tragic story, I invite you to watch the video below...

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You Want to Sue Your Doctor. Before You Can Start a Medical Malpractice Lawsuit in New York, You Have to Pay to Get INTO the Court House Door. Who Pays These Fees?

Fri, 23 Feb 2018 09:29:00 EST

In the short run, your lawyer pays them.
In the long run, you do.

Here's what I mean...

You believe your doctor screwed up and caused you harm.
You believe your doctor was careless on a particular date and time.
As a result of his wrongdoing, you suffered long-term, permanent injury.

You find the best attorney you can to investigate your possible case.
He obtains all of your medical records and reviews each and every page.
Then, he copies all your medical records and hires the best medical expert he can find on the subject.

After a few months your lawyer calls you to tell you that his expert confirms that your doctor violated the basic standards of good medical care and as a result of his carelessness, you suffered all these injuries.

Now, because of a medical expert who confirms you have a valid basis for case, you can start your lawsuit.

"But wait a second," you say. "Don't we have to pay fees to start my lawsuit in New York?" you ask.
The answer is yes, there are fees to get into the court house door.
There are fees to start your case.

There are fees to file certain papers.
There are fees to let the court know that we would like a conference.
There are fees to put your case on the trial calendar.

There are fees to file requests with the judge, also known as motions.

"So who pays those fees?" you ask.

If your attorney has agreed to accept your case to prosecute, in New York, that means he has agreed to pay all expenses and fees to proceed forward on your behalf. That means your lawyer will lay out all the fees, expenses, expert witness costs and anything else needed to prosecute your case.

"Why would he do that?" you again ask.

If you are able to settle your case or go to trial and are successful, then you have agreed to repay your lawyer all of those expenses and fees he paid on your behalf. It's like an interest free loan that the lawyer makes on your behalf. If you win, you have to pay him back. If you lose, he gets nothing. That's the risk he takes when agreeing to accept your case.

In addition to paying back your lawyer if you're successful, your attorney then finally gets paid for all his time, effort and energy for all the years of work he invested into your case. In law, we call that a contingency fee. That really means that your lawyer only gets paid if he is able to get you money.

If you lose, your lawyer gets nothing. All his time, effort and energy for the past few years working on your case will be for nothing. Try and find another service provider or profession that agrees to be paid only if they're successful.

Imagine walking into a grocery store and saying "I'm only going to pay for my groceries if the food tastes good." Imagine going to a surgeon and saying "I'm only going to pay for your medical services if I survive." Imagine going to get a haircut and saying "If you screw up my hair, I'm not paying."

Try going to your accountant and say "Listen, I'm only going to pay you three years from now if the IRS doesn't come and audit my business." It would be outrageous! But that's exactly what medical malpractice and personal injury attorneys do. They say "Hey! We'll work for free for three years. In fact, we'll pay the court for all YOUR expenses on YOUR lawsuit. It's ok. We'll pay out of our own law firm pocket. If by some chance we're successful in getting you money to compensate you for your injuries, then and only then will you need to pay us back and then pay a fee for all the work we've done on your case, Ok?"

Getting back to the title of this article, who pays? 
I do.
Then, if you win your case, you pay me back.

To get into the court house door, only after a medical expert confirms you have a valid case, we must buy an identifying number for your case. This is known as an index number. Then, after your lawsuit is started and the people you sued have responded to your allegations, we ask the court for a scheduling conference. There's a fee to request that as well.

When we conduct depositions, each side has to hire a court stenographer to transcribe all of the questions and answers that are given. Who pays for that? We do. 

When we initially investigate your case and have to obtain all of your medical records, who pays for that?
We do.
When we send all your medical records to a board certified medical expert, who pays the expert fee?
We do.

ONLY IF YOU'RE SUCCESSFUL DO WE GET REPAID FOR ALL THE EXPENSES THAT WE PAID ON YOUR BEHALF.

To learn if you can sue if you can't pay court fees, I invite you to watch the quick video below...

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This Was a HORRIBLE Example of What Lawyers SHOULD NOT Do During Closing Arguments

Tue, 23 Jan 2018 22:00:00 EST

I took my daughter to court today.
She's home from college during winter break.
She's expressed an interest in law, so I took her to court to see if she could watch a few ongoing trials.

I also took her to court last week.
We got to see a medical malpractice case and a criminal case in action.
First, I'll tell you about the malpractice case we saw last week.

It involved a man who was being transferred from his bed to a stretcher for a urology procedure.
As he was being transferred, he fell from their grip, hitting the floor and injuring his neck.
When my daughter and I walked into the courtroom, we knew none of this.

We sat in the back of the courtroom and began to take it all in.
It was one attorney against three.
The patient's attorney was questioning an anesthesiologist who was guiding the patient's head as the transfer was being made to the stretcher.

The patient's attorney was a famous lawyer.
He was well known throughout the New York legal community as being a very dangerous advocate and for consistently getting excellent results for his clients.
The problem was that he was well past his prime.

He appeared to be in his 80's and had difficulty controlling the doctor on the witness stand.
He should have been asking her short, leading questions calling only for yes or no.
What he got was long-winded answers.

He couldn't control the witness and it showed.
He knew better but couldn't do it the way he used to.
That was a shame to see.

It was apparent to everyone in the courtroom that this attorney was struggling to show that the doctor was careless and contributed to his clients' injuries.

After fifteen minutes of listening to this arguing over the wording of some questions, the patient's attorney sat down with a whimper.
That never would have happened in his prime.
What a shame.

Next up was one of the defense attorneys.
I knew him.
I had tried a case with him years ago.

He was a senior partner now in this defense medical malpractice law firm.
He took charge of the entire courtroom when he stood up and introduced himself to the anesthesiologist on the witness stand.
From here on out, there was no question who controlled the witness...he did.

He was confident.
He was articulate.
He asked short, leading questions.

He projected confidence in his defense.
He was even so bold as to ask the doctor to explain certain medical terms for the jury.
Interestingly, this was not his client.

Yet he used her to help the jury understand what his client did and didn't do.
He actually represented the hospital and one or two of the other health care professionals who were involved in this 'dropping-the-patient' incident.
We stayed another ten minutes before leaving to find another ongoing trial.

When we walked out of that courtroom, I asked my daughter what she thought of the patient's attorney.
"He seemed old and couldn't ask a single straight question," she responded.
"She kept talking and explaining away and he just stood there listening. I thought you're not supposed to allow the witness to explain anything when cross examining a witness," she said.

"You're absolutely right," I told her.
"This lawyer was an excellent lawyer back in the day. Now maybe he should consider hanging it up," I commented.
"What did you think of the defense lawyer who then got up to question the anesthesiologist?" I asked my daughter.

"He was amazing. He knew exactly what he wanted answered. He asked only leading short questions and had no trouble answering them. The jury was paying lots of attention to this lawyer, but not the patient's lawyer. Big difference," she remarked.
I had to agree with her.

Her observations were right on target.
We then went across the street to the criminal court house to see if we could catch a criminal trial in progress.
We did.

There was a very young prosecutor wearing a very tight blouse and skirt asking a police detective on the witness stand questions.
The prosecutor asked questions that caused the detective to tilt his head and wonder why she was asking some really simple and basic questions.
"Detective, why do you use a database to collect information about a criminal suspect?"

"What do you call the name of this database?"
"What did you do after you searched the database?"
"When you went to that person's home, did you meet anyone there?"

I've never seen a witness wonder why their own attorney was asking such bizarre questions.
These questions appeared to have no bearing on the actions of the detective or anything she was trying to prove.
If I, as a bystander, sitting in the courtroom for a few minutes was confused, imagine what the jury was going through.

My daughter made another interesting observation...
"The prosecutor repeatedly started a question, got confused, said 'Strike that' and then tried to ask another question. It was really annoying," she mentioned as we walked out of the courtroom.

Ok, now you know the backdrop of why we were in court last week.
That brings me to today's excursion to court.
My daughter really enjoyed coming with me, which is nice to hear.

The first courtroom we entered, we saw it was a jury trial.
The judge had just started to tell the jury that "This is now time for the attorneys to make closing remarks. The defense attorney will present his closing first," he said as he pointed to the defense attorney to begin.

We knew nothing about this case...yet.

The defense attorney appeared to be in his mid 60's.
Overweight.
Wearing an ill-fitting and well-worn grey pinstripe suit.

He approached the lectern, placing it squarely between the jury and himself and stood behind it.
He leaned his elbows on the lecturn as if he was having a jolly good conversation with some blokes at the park.
Thankfully, he wasn't using any notes.

His manner was conversational.
That was good, at first.
This was a slip and fall case.

The defense lawyer prefaced his remarks saying this would be a really quick argument.
The injured victim was in a guy's truck and as she got out of the truck, she fell and injured herself.
That's it.

That's the whole case.
The jury was to decide who, if anyone, was legally responsible for this person's injuries.
The defense attorney tried to argue that his client, the truck driver didn't do anything wrong.

He then inexplicably made a glaring legal error, which the plaintiff's attorney didn't pick up on.
"It's my opinion that my client did nothing wrong here," he said.
Why is that wrong?

Because it doesn't matter one whit what the attorney believes.
It's the jury who has to evaluate the evidence to determine who was believable.
Anyway, since the victim's attorney didn't pick up on it, it was ignored and the attorney continued blabbering away.

After no more than five minutes he finished by saying, "You know, you may find that the plaintiff, the person who brought this lawsuit is also at fault here. In fact, you might think they're equally at fault here."

That was it. 
A bare-bones, no frill, no substance, no great oratoracle skills closing argument. 
It was made with a blah attitude.

No conviction.
No sense of outrage.
No sense of moral right or wrong.

What a shame.

The plaintiff's attorney was only slightly better. He argued that his client was probably at fault, although not as much as the defense lawyer argued. Instead of 50/50, maybe they'd see their way to a 70/30 split.

I get it.
If the facts show that your client is partially at fault, better to admit it and move on than to argue the point.
You gain more credibility here.

But there were no photos of the truck she fell from.
Only a photo of a different truck, unrelated to the one involved in this case.
How the judge allowed this into evidence is beyond me.

There were no photos of the inside of the truck to confirm or deny the claims that there were no hand-holds for the passenger to grab as she navigated her way out of the truck. Didn't seem like there was much here except the truck driver who testified and the injured victim. 

A classic case of 'he said', 'she said'.
Who does the jury believe.
I asked my daughter who she believed, just based on watching this closing argument.

She said "I think the defense had a better argument, although the defense lawyer looked and acted doofy when giving his closing argument."
That was an interesting observation.
Why?

Because she took into account the appearance and the presentation of the attorneys when answering my question.
I asked "What did you think of the plaintiff's attorney and his closing argument?"
"He stood in front of the jury, perpendicular to them. He didn't often look at them when he was talking. It was so weird," she noted.

I agreed.
I told her "When you're communicating and talking to the jury during opening arguments or closing arguments, it's as if you're having a conversation with someone in front of you. You MUST make eye contact. You MUST look at the jurors in the eye. If you talk to the wall while you're making your arguments, not only is it socially awkward, but suggests a lack of credibility if you can't look these folks in the eye."

When we walked out of the courtroom, I felt very unsatisfied.
I felt as if both attorneys did a really poor job of communicating their messages to the jury.
They failed to truly argue their points convincingly.

You couldn't get the sense that they really believed in their case.
Again, that's a shame.
In all likelihood, the jury verdict will reveal their apathy.

As for my daughter, she got to see what NOT to do during closing arguments.
Often times, it's just as important for someone interested in law to learn what NOT to do as it is to learn what to do.

To learn more about closing arguments, I invite you to watch the quick video below...

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During Cross-Examination if You Don't Know the Answer, Can You Guess?

Wed, 17 Jan 2018 11:03:00 EST

Well, can you guess?

The short answer is no, you can't and you shouldn't.
Want to know why?
It's because when you guess you could be right and then again, you could be wrong.

Let's say this is a car accident case.
You're asked during cross examination how fast you were going fifty feet before the impact.
You're not sure.

You think you were going slow.
You think your speed was less than 20 mph.
Instead of saying "I don't know," you say "I was going 15 mph."

It turns out that there were security cameras that recorded the intersection where this happened.
The security camera recorded every second.
An accident reconstruction expert reviewed the video.

He calculated that there was no possible way you were traveling 15 mph based on the distance you travelled in that short time frame.
Based upon known formulas for speed, time and distance, he calculated that you were traveling at 57 mph in a 20 mph zone.
What do you think your answer of 15 mph will do to your credibility in front of the jury?

It will destroy it.
Plain and simple.
If there are other ways to show that your 'guess' was incorrect, you can be sure that the opposing lawyer will do everything possible to expose your 'lie'.

On the other hand, your guess could be right.
When you don't know the answer to a question, simply say "I don't know," or "I don't remember right now."
You may have known the answer at a previous time.

You might have known it when it happened.
You might have known it a year later.
You might have known it when you were questioned at your pretrial question and answer session known as a deposition.

But for some reason, you have a brain freeze and just don't remember the answer while you're on the witness stand.
Don't guess.

What if the opposing attorney asks you for a range of your speed?
"Were you traveling somewhere between 15 mph and 30 mph?" he asks innocently.
If you know the answer, tell him.

If you don't know, tell you you don't know and that you don't want to guess.
He may ask "Were you traveling between 30 mph and 50 mph?"
Again, he wants to see if you'll commit to a particular range.

If you do, he's going to lock you into that testimony, even though you're not exactly sure.
Trying to guess an answer does more harm than good.
Once you give a definitive answer to a question and you finish testifying, you can't later go back on the witness stand to make corrections.

You don't get a do-over.
That's not how this works.
That's not how any of this works.

To learn why credibility is the most important part of your lawsuit, I invite you to watch this series of videos...

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Why Would an Attorney BUY the Trial Transcript During Your Trial?

Tue, 02 Jan 2018 09:27:00 EST

Maybe as a souvenier?
Maybe to show his kids, years later?
Maybe to put it on his website?

The answer is no, no and no.

None of those are the real reasons a trial lawyer will purchase the trial transcript in your medical malpractice case here in New York.

Ok.

Maybe the attorney wants to frame it and put it in his conference room.
Maybe the attorney wants to send it to the news media.
Maybe the lawyer wants bragging rights in his office about the questions he asked.

Sorry. Those aren't the answers either.

Here's the scenario...

You were injured by a careless doctor.
You brought a lawsuit against him.
You claim that he violated the basic standards of good medical care.

Your doctor, whom you once loved, laughs at your lawsuit.
"Why are you suing me? I did nothing wrong," he argues.
Then, he says "Even if I did something wrong, so did YOU!" he charges.

Then, he says "If I did something wrong, whatever I did, did NOT cause you harm," he argues.
Then, to make matters even worse, he says "If I was careless and caused you harm, your injuries are not as bad as you claim!"
"ARGGHH!!" you want to scream.

You also learn from your attorney that your doctor refuses to acknowledge he did anything wrong and is refusing to negotiate.
"We'll see you at trial," his attorney tells your attorney.
That means it will take two to three years to actually get to trial.

A jury trial where six members of the community will decide if you are more likely right than wrong.
When you get to trial, you'll notice how the courtroom is set up.
There's a table for your lawyer, usually closest to the jury.

There a table for the defense lawyer, usually farther away from the jury.
There's a section in the courtroom just for the jury to sit and observe the proceedings.
You know where the judge sits; you don't need me to tell you that.

There's a chair next to the judge, for the witness to testify.
Then you notice there's a chair and some device on a tripod right in front of the witness' chair.
The device looks strangely like a typewriter, but more compact.

When the trial starts, you notice someone sit down in that chair and type on that device.
This person is typing furiously every time someone says anything in the courtroom.
You learn that this is the court stenographer, also known as the court reporter.

She is there to record EVERYTHING that is said in the courtroom.
She will record the judge's every word.
She will record every word your attorney says.

She will document every word the defense lawyer says.
Importantly, she will record every word the witness says.
If needed, an attorney can purchase those recordings from the court stenographer.

Lawyers call this 'daily copy' or daily transcripts.
At the end of each day, the court reporter will transcribe the recordings she made in shorthand on her machine.
Those transcribed recordings are turned into a trial transcript.

An attorney can buy portions of the trial transcript or all of it.
Having the actual transcript is extremely useful during cross examination of a witness.
It's also helpful to show to your medical experts who will be testifying soon and who are not in court listening to the daily testimony.

Having a word-for-word transcript is also helpful during closing arguments. How?
I can now show the jury the exact words the defense lawyer used to promise the jury something.
I can show how the opposing attorney has failed to live up to his promises that he made at the beginning of your case.

To learn more about daily transcripts, I invite you to watch the quick video below...

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Trial Exhibits: Numbered or Alphabetical? Does It Really Make a Difference?

Fri, 13 Oct 2017 07:40:00 EST

The answer is "Yes," it does make a difference.

You might think "Who cares about trial exhibits and what you call them?"
Ah, let me tell you why it's important...

In every trial, we need to use exhibits.
We have medical records we need to get into evidence.
We have anatomical models that medical experts will use to explain your injuries.
We often have photographs that the jury needs to see.

We have enlargements that the jury can follow as a witness reads from a piece of paper.
We have transcripts that must be read from.
We have drawings that will be referred to.

It doesn't matter if it's a medical malpractice trial, an accident case or even a wrongful death case that goes to trial.
Every case involves exhibits.
So let me ask you this question...

Let's say an attorney wanted to show a photograph to a witness.
"Mr. Jones, I'd like you to look at this," he says and hands it to the witness.
"What is that, that I just handed you?" the attorney says.
"Uh, it's a photograph," the witness says in a confused tone.
"Great. What's it a photograph of?"
"The accident scene," the witness replies.

Let's say the attorney has ten photographs showing different views of the accident scene and wants all of them introduced into evidence.
If an appeals court were to read the transcript a year from now, how would they know what "This" or "That" refers to?
We know these are all photographs, but we don't know which ones the witness was talking about as he described what happened.

That's why it's vitally important for every exhibit that we use at trial to be identified.

"Your honor, I'm showing my client a photograph of the accident scene. Can I have this marked for identification please?"
"Of course," the judge says. "Mark it as Plaintiff's 1 for identification," the judge says.
"Mr. Jones, I'd like you to look at this photograph of the accident scene that has been marked as Plaintiff's 1 for identification. Have you ever seen this photo before?" the attorney says.

Now, everybody in the courtroom understands the witness is talking about this one particular photograph.
"Your honor, I'd like this next photo marked for identification as well," your lawyer says.
"Very well. Mark it Plaintiff's 2 for identification," the judge says to the court reporter.

"Mr. Jones, take a look at this next photo, marked Plaintiff's 2 for identification, does this show a different view of the accident scene compared to the photo marked as Plaintiff's 1 for identification?" your lawyer asks.

The ultimate goal for each of these exhibits is to get them into evidence.
You should know there are specific requirements that have to be shown in order to admit an exhibit into evidence. (I'll save that discussion for another day).

When I feel that I have established the foundation needed to get an exhibit into evidence, I will offer it into evidence.
"Judge, I offer Exhibits 1 & 2 into evidence," I say.
If the judge agrees, he will tell the court reporter to change the notation on the exhibits.
"Madam court reporter, please change the markings on Exhibits 1 & 2 from being marked for identification to being marked into evidence," the judge says with authority.

Later, when the defense lawyer has an opportunity to introduce some exhibits, there's one important difference.

"Judge, I'd like to have the medical records for this patient marked for identification," my opponent says.
"Fine. Madam court reporter, please mark those medical records as Exhibit A for identification," the judge says in response.

Did you notice the difference?
It's a slight difference but it's an important one.
It's a difference between using numbers to identify exhibits and using letters.

The judge and the attorneys will need to keep track of all exhibits used during your trial.
There are two categories of exhibits...
The first category are those exhibits that are just identified. "Exhibits marked for identification"
The second category involves exhibits that were admitted into evidence.

Not every exhibit that is offered into evidence will be admitted.
Also, not every exhibit used will be offered into evidence.
Lastly, it's important to know who has introduced the exhibit.

Was it the Plaintiff's lawyer? (The attorney who represents an injured victim or patient.)
Was it the defense lawyer?

If the exhibit has a letter identifying it, it means it's been used by the defense.
If the exhibit has a number associated with it, it means it's been used by the plaintiff.

Now you know the difference between the two.

To learn what an attorney does if the opposing lawyer asks to use your trial exhibit, I invite you to watch the video below...

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The Judge REFUSED to Help Us Negotiate & Settle, Forcing Us to Try the Case

Tue, 10 Oct 2017 07:46:00 EST

We wanted to settle.
So did the defense.
It was a decent medical malpractice case.

We had Ok liability.
That meant we had an expert willing to testify that the offending doctor violated the basic standards of medical care. But it was not clear-cut. These were shades of grey. One doctor says he wouldn't have done it that way. Another said he would have. That's not great. Ideally, we want a case where a doctor says there's no doubt that what this doctor did was improper and never should have been done.

We had Ok proximate cause.

That means our expert was willing to testify that the offending doctor's wrongdoing was a cause of the patient's injury.
When I say we had 'Ok proximate cause' it means that it wasn't great but it wasn't horrible either.
It was just Ok.

That was the second weak link in our case.
I didn't think a jury would connect the doctor's wrongdoing to the patient's injury.
My expert made it sound convincing, but I wasn't convinced.

Every time I ran the facts by one of my colleagues, I got the same response.
"Where's the causation?" they'd ask.
I had to agree.

Yet my expert kept telling me that we had the connection.

You should know that in a medical malpractice case in New York, we're required to show, with a medical expert that (1) there was wrongdoing, (2) the carelessness was a cause of your injury and (3) your injury is significant and/or permanent. If we can show that, it means we have made out a 'prima facie case'. That's a fancy Latin term meaning that we've established the three elements needed to get your case in front of the jury.

It will then be up to the jury to decide if we are more likely right than wrong.

This was not a strong case by any means for us.
I knew the defense also had problems.
It wasn't a clear cut case for the defense either.

I knew they were defending this case till the end to save face.
They told me all along that they'd never settle this case.
They argued for two years that their doctor did nothing wrong.

I knew this defense lawyer.
He worked for a good law firm in New York City.
I'd worked with him on other cases before.

I respected him and his opinion.
He was a good trial lawyer.
A straight shooter.

I could sense his reluctance to try this case.
I could sense he really would have preferred to negotiate and not rely on an unknown jury coming to a decision.
I had the same exact feeling.

He never actually came right out and said this, but during our conversations in court, I could tell.
It's a gestalt you get when talking to your opponent about your case.
You see if he and his client are receptive to negotiating.

"Listen Gerry, I think you have a stronger case on liability than I do, but I have a better chance on getting your case dismissed on proximate cause," the defense lawyer said during a settlement conference in court. "The insurance company has this case as 'defensible' and 'no pay'. Looks like we're going to try this case to a verdict," he said.

This was bravado. Putting on a good face. Bluffing.
I knew their medical expert wasn't on solid ground.
My opponenent knew that I knew it.

"Listen, I understand your point, but I think once a jury finds your doctor was careless, it's simply a matter of connecting the dots to see that there's a clear connection between his negligence and my client's injuries. Once that happens, the damages are significant and an appellate court could easily decide this case has a value of more than one million dollars.

Again, more bravado talk.
More posturing.
The defense lawyer knows this case isn't worth one million dollars.

I know the case isn't worth a million dollars.
This case has a value of $350,000-$500,000, assuming we had good liability and good causation.
He knew it and so did I.

I had made a $1 million dollar demand to settle.
I knew this was not a realistic number.
The defense lawyer also knew this was an unrealistic number.

As we got closer to trial, I got the sense that something had changed.
I couldn't put my finger on it exactly, but it was just a sense.
It felt as if the defense lawyer wanted to try and settle but couldn't.

"Hey Gerry, listen, you've got problems with your case and my doctor refuses to settle. My hands are tied even if I did want to try and settle," the defense lawyer says to me one day in the court hallway. That's not a resounding "We'll never settle," and it's not "Let's negotiate now" comment either. It's conflicting. His tone also reflected ambiguity.

I also knew that there was some issue with the defense because he hadn't yet notified me which medical expert he was bringing in to testify at trial. You see, in New York, we're required to notify our opponent that we're bringing in certain experts. We have an obligation to share with the defense our experts' credentials. We have to identify where he went to school, where he did his internship and residency, where he's licensed to practice medicine and if he has any affiliations with hospitals.

We do not identify our experts by name. Instead, the defense takes the information we provide and plugs it into a computer program. That program then identifies exactly who we're bringing in to court. Then, once we know WHO is coming in to testify, we try and dig up dirt on that expert. Both sides do the exact same thing.

Well, we were getting very close to trial and the defense still hadn't notified me about which experts they were bringing in to court. That suggested either he was having trouble getting a medical expert to tesitify or he didn't have time to get this done earlier or this was a delaying tactic to make me do last-minute research before trial.

Jury selection was starting today.
The trial assignment judge had asked each of us whether we were ready to try the case.
"Yes, your Honor," we both replied.
"Good. Now go pick a jury," the judge said.

We spent the next few hours removing jurors who were not right for this case.
It should be called jury 'deselection' rather than jury 'selection' since we don't actually pick the jurors we want. Instead, we have to remove those we DON'T want.

By mid-afternoon, we had six members of the community who said they could be fair and impartial. In addition, we also picked three alternate jurors who would take the place of any of the first six should they become ill or unable to complete their jury service.

After we reported back to the jury clerk that we had finished jury selection, we were told to report to the judge who would be trying this case. He was assigned to us randomly among those judges who had experience trying malpractice cases. I had heard about this guy. Not great things. I'd heard he wasn't helpful to attorneys representing injured patients. I'd heard he came from the defense side where he represented doctors and hospitals. I'd also heard he wasn't helpful to either side when it came to try and help attorneys negotiate a case.

I'd never encountered a judge to took that position.
I prejudged him thinking that since he came from the defense, he'd automatically favor the defense arguments.
I anticipated making lots of objections, thinking his rulings would favor the defense.

My adversary and I went up to the judge's private chambers for a chat.
This is customary.
The judge was just assigned our case.

He doesn't know anything about it.
He doesn't know the facts.
He doesn't know the allegations.

He doesn't know the medicine.
He doesn't know what we know.
We've been living with this case for almost three years now.

The judge is getting the case for trial without knowing anything.
It's time to fill him in.
"So, what's this case about?" the judge asks as we sit down in front of him.

He's not expecting a 30 minute recitation about each and every detail.
Instead, he's expecting a one minute summary of why we're here and why we believe the case has significant value.
Same for the defense.

Once he gets an idea of what the case is about, he asks for copies of the pleadings.
Pleadings are the legal documents that details the allegations against the doctor.
He wants to see what you're legally claiming.

He also wants to see what the doctor is arguing as a defense.
"Judge, this case isn't timely," is one defense.
"Judge, the patient is reponsible for her own injuries," is another.
"Judge, the claims here don't rise to the level of actually being a case and should be thrown out," is yet another.

Once he reviewed that, he said "Ok, we're starting trial at 9:30 a.m. on the dot tomorrow morning. DISMISSED!"
"But wait Judge...don't you want to try and negotiate this case? Possibly see if we can resolve it without the need to proceed to trial?" we both asked almost simultaneously.

The judge's response shocked me.
I think it stunned the defense lawyer too.
"Counselors, you're here to try your case. That's what we're going to do. I am the trial judge assigned to try your case. I am not the pre-trial settlement judge. I am not the judge assigned to negotiate with you. You're both experienced trial lawyers. It's not your first case and not your first trial. You gentlemen had almost three years to try and negotiate as this case wound its' way through the court system. Well, here you are. Your decisions and those of your principals have led you here. You're both adult-enough to negotiate on your own. You don't need me to mediate and negotiate for either of you. Now, this conversation is over and make sure to have your witnesses tomorrow ready to go immediately after your opening remarks," the judge instructed.

My adversary and I walked out of the judge's private chambers surprised.
Apparently he'd never had a trial judge refuse to negotiate or attempt to negotiate either.
I could sense he wanted to negotiate but needed an intermediary.

I would also have liked to negotiate but couldn't get past the defense lawyer's facade and bravado.
In a last ditch effort on the way out of court I said "Any chance we can resolve this now before starting trial tomorrow?"
"My hands are tied. Even if I wanted to do something, the carrier won't budge and without the judge putting pressure on the carrier, I don't believe they'll move off their position.

So we tried our case.
One week of trial.
Many witnesses.

Multiple experts on both sides.
In court every day.
No attempt by the trial judge to ask if negotiation was possible.

No attempt by the trial judge to see if settling this case was a better option than having a jury decide.

So we let the jury decide.
And they did.
In our favor.

The jury found that yes, the doctor had violated the standards of good care.
They also found that yes, the doctor's wrongdoing was a cause of my client's injuries.
But they didn't give her the amount of money we thought her injuries were worth.

They gave her less.
Much less.
In fact, after the trial, the defense lawyer confided in me that he had valued the case at around the exact amount that the jury had given my client. He had reported that to the insurance company early in the case. If there were negotiations, this is the amount he likely would have offered to settle the case before trial.

Had the judge tried to negotiate, he likely could have gotten the defense to offer money and my client would have had the opportunity to evaluate that offer and decide whether to take it or risk going to trial. As there was never an offer, we had no choice but to let the jury decide.

To learn about a lawyer who refused to negotiate directly with us and preferred to have an impartial negotiator try to negotiate, I invite you to watch the quick video below...

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Can a Jury Give You MORE Money Than You Ask for in YOUR Medical Malpractice Lawsuit?

Wed, 09 Aug 2017 08:52:00 EST

The quick answer is yes, they can.

Let me tell you why.

Let's say you've been injured because your doctor was careless. Your injuries are permanent. You've chosen to bring a lawsuit seeking money as a form of compensation for all the harms, losses and damages you suffered because of that wrongdoing.

When you start your lawsuit, your doctor can't believe you sued him. In his response to your legal papers he claims he did nothing wrong when treating you. He also says that nothing he did or didn't do caused you harm. Then, to make you feel even worse, he'll claim that you are somehow responsible for your own injuries.

On top of that, he's also going to argue that your injuries are not as bad as you claim. 

Those are the four typical defenses we see in these medical malpractice cases here in New York. Your doctor's attorney has made it clear that they will not negotiate and this case will never be resolved by settling your case.

What that really means is that a jury will have to decide if you are more likely right than wrong that your doctor caused you harm and injury. If the answer is yes, the jury will be required to compensate your for all your damages.

You should know that there are different types of damages.

They can be broken down into two categories.

Economic damages and non-economic damages. There are subcategories for each.

Economic damages involve lost wages, lost earning capacity, future loss of income. These are things that can be calculated. If you earned $50,000 and have been unable to work for the past two years because of your injuries, it's simple to see that you will have lost $100,000 worth of income during that time.

If you are unable to work into the future and you still have 20 years of work you could have done had you not been injured, then we can project out your earnings during that 20 years of work.

These are examples of economic losses.

Then, there are elements of damages that have no definable limits. For example, when we talk about your pain and the suffering you've endured, there's just no way to precisely calculate that amount. Your suffering may be different than someone else with the same type of injury. Your age may affect you worse than your neighbor who had the same problem. You may have other medical issues that make your condition worse than a younger person who suffers the same type of injury.

A jury must determine collectively what your pain and suffering is worth. They must use their common sense and their experience when deciding how much money to give you to compensate you for your harm.

Let's get back to the title of today's article.

Can a jury give you MORE than you're asking for? The answer is yes. 

If the jury feels that you are entitled to receive MORE money, then they can give you more. They can give you much more. 

If your attorney asks for a specific amount of money for your pain and suffering, the jury can decide that he didn't ask for enough. They can, on their own, decide to give you more. Your attorney's request for a specific amount of money is just a guideline.

"Ladies and gentlemen, for her past pain and suffering I ask you to consider whether $2 million is sufficient to compensate her for all she went through..."

The jury may decide that she should receive $5 million for that. Or more. Or less.

Likewise, the jury could decide that she is to receive LESS than what your attorney has suggested.

Regardless of what the jury ultimately decides to give you, you can be sure that the defense will object to that amount. The defense will ask the judge to throw out the verdict as being against the weight of the evidence. He's going to argue that your verdict is not supported by the testimony and evidence.

Even if the judge were to reduce your verdict, the defense would likely appeal that decision and ask the higher court to either throw out your verdict or significantly reduce it based on other similar cases.

To learn more about whether a jury can give you MORE money than you ask for, I invite you to watch the quick video below...

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Defense's Medical Expert Sees Me at a Charity Event. He Comes Over & Wants to Talk About Your Case. CAN I TALK TO HIM? SHOULD I TALK TO HIM?

Sat, 29 Jul 2017 13:30:00 EST

What a dilemma!

I'm at a networking charity event and within moments of my arrival this guy comes up to me and introduces himself.

"Mr. Oginski, Hi! I'm Dr. Jones the defense's medical expert on that case that's coming up for trial in two weeks involving claims of improperly performed surgery resulting in horrible damages. Can I talk to you about that case?"

"Whoa! Hold on there fella. I know who you are. I know you're the expert who is coming into trial to oppose our case."

"Why do you want to talk to me?" I ask.
"I want to get the inside scoop about how your expert can say, with a straight face that this surgeon did something wrong...this guy was trying to save your client's life and now you go ahead and sue him for an unfortunate complication..."

Do I talk to the expert? Do I get into the details and the merit of your case with him? Is there some ethical rule that says I shouldn't be speaking to my adversary's medical expert before trial about this case?

Here's the short answer...don't do it.

Nothing good can come of this interaction. Not for me and certainly not for the expert. In my opinion, it's best to avoid this interaction at all. However, if the doctor initiates the conversation, my response would likely be "Hi Doctor, nice to meet you. I can't talk to you about this case. After it's over, I'd be more than happy to chat. Right now, I've got to get back to my wife, thanks."

Is there an ethical rule that says I can't speak to my opponent's expert? Not really. I didn't seek him out. We met inadvertently at a charity event. I didn't plan on meeting him there. He's the one who came up to me. I didn't approach him, although I did recognize him from across the room.

How did I know he was the opposing expert? Simple.

You see, the defense is obligated to notify me when they hire an expert who will testify in their defense. They have to provide me with his credentials including where he went to school, where he did his residency training, whether he did a fellowship, what State he's licensed to practice medicine in and whether he's board certified.

They do not provide me with his name.
With today's computer programs, we plug in his credentials in and it spits out his name. 
Then, we try and dig up dirt on this expert.

Likewise, the defense does the same thing when I provide them with my expert's credentials.

I know this guy because I've cross examined him before. I know how he behaves at trial. I've seen his tricks. I've spoken to other attorney's who have cross examined him to get their thoughts and ideas about the type of witness he is. I've gotten trial transcripts on this expert in other cases he's testified in.

This ethical dilemma can result in two different outcomes.

The first is where I say to myself that there's no harm in talking to this expert. In fact, during a casual conversation, I might learn a few of their strategies and defenses that might help our case. I also might learn a weakness in their case that I wouldn't have otherwise have learned until cross examination.

But suppose, during this informal conversation, the doctor is trying to elicit information from me to take back to his defense attorney? What if I accidentally let my guard down and reveal a weakness in our case?

Well, you can be 100% sure that the expert will relay that information to the defense lawyer and try to use that admission against me during trial.

This conversation is a double edged sword and here's why...

At trial, when I cross examine this expert, I will ask him about our informal conversation at this charity event.

"Dr. Jones, you and I had a conversation two weeks ago when we met by accident at this charity event, correct?"
"Yes."
"You were the one who approached me, right?"
"Yes.
"You came over to introduce yourself, true?"
"Yes."
"You came over with the specific intent to talk about the details of this case, right?"
"Yes."

Depending on how upstanding this guy is, he might dispute each of these questions and claim it was the other way around.

"No, Mr. Oginski, you approached me! You were the one who kept harping on how could I defend this case in light of the facts. You were the one who was aggressive even though I told you I couldn't talk to you about this case."

Then what?
Now I look like the aggressor.
Now I look like I wouldn't take no for an answer.

He's just turned the tables on me and the jury won't like it.
That's why I said it's much better not to get into this situation in the first place.

Has this scenario happened?
Sure it has. Not often, but it has.

Do I have an obligation to notify the defense lawyer that his expert approached me and talked to me?

I don't believe so.
Some attorneys might have a different opinion.

Do I have an obligation to tell the judge about this conversation?
I don't believe so.

Rather than open up pandoras box and create all this drama that will come out at trial about this conversation, the better practice is not to have the conversation to begin with.

To learn more, I invite you to watch the video below...

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What Happens if YOU DON'T Show Up For YOUR Medical Malpractice Trial?

Thu, 22 Jun 2017 11:06:00 EST

It's a strange question, isn't it? 

A lot could happen and it's not good for your or your case. Let me tell you why...

You've sued your doctor because you claim he was careless. You claim that his carelessness caused you harm. You claim that your injuries are permanent and disabling.

Your doctor says your case is baloney! He says he did nothing wrong. He argues that you caused your own injuries by not doing what he told you to do. Then he argues that even if he did something wrong, whatever he did, or didn't do, did not cause your injuries. Then, as if to dig the knife in deeper, he argues that your injuries aren't as bad as you claim.

This means that your case will not settle. This means that the defense refuses to negotiate. This means that your case is going to trial. But, it will take two to three years to get there. That's a long time.

During those intervening years, you are frustrated. Frustrated with the pace at which your lawsuit is proceeding. Frustrated with your inability to do those activities that you used to do. Frustrated with your inability to earn a living.

YOUR LAWYER CAN DEAL WITH YOUR CASE

You hired the best medical malpractice lawyer you could find. He told you it wouldn't cost you a dime out of your own pocket to sue your doctor. Only if you won your case would you have to pay your lawyer. "That's great!" you thought. "No skin off my back. I'll let the lawyer invest all his own money. Let him do all the work. Then, if we win, he can get his expenses back and also his fee. Sounds good to me!" you think to yourself.

But all this frustration that's built up over the years is taking a toll on you. You're fed up. You're tired of being disabled. You're tired of the excuses from your lawyer about why your case is taking so long to get to trial.

Finally, your lawyer tells you that your case is coming up for trial. He needs you to come into his office to prepare you for trial. 

You're thrilled. You're excited. You're also scared. Scared to death that you now have to face six strangers and disclose all your frailties and disabilities. Scared that you'll have to face your doctor. The one you trusted. The one you loved.

You meet with your lawyer. He spends a few hours 'preparing' you for trial. It's exhausting. It's frustrating. You don't remember half the details he's asking you about. It's been a few years since this incident happened. You're worried. You're worried what the jury will think if you forget. You're worried what will happen if you lose your case. You're worried about appeals and the uncertainty of a jury verdict.

YOU'RE WORRIED

You're worried about the judge and whether he'll treat you fairly. You're worried about getting to court each morning on time and needing to leave extra early to get through court house security. You're worried about what to wear. You're worried about the little things.

These worries and frustrations are overwhelming you. Finally, you give up. You resign yourself that you're simply NOT going to show up to your own trial. Screw it. Let your lawyer handle it. Let him try your case without you. He can do it. You read about attorneys doing that, especially in wrongful death cases where the injured patient is no longer around to testify. He can figure out a way to get it done.

This way you don't have to fret. You don't have to worry. You don't have to face your fears. You can stay in the comfort of your own home. Your lawyer will call you with updates at the end of each day. At least that's what you hope he'll do.

You call your lawyer the day before your trial is scheduled to start. You tell him you're not coming in. You're not going to testify. You're fed up and you're frustrated. Whatever happens, happens.

YOUR LAWYER IS SHOCKED!

Your lawyer is shocked. Shocked that you have taken this attitude. Shocked because he has spent over fifty thousand dollars prosecuting your case and spent hundreds of hours of his time on your case. Shocked because he never expected this from you. He's also shocked because in his entire career of thirty years handling these cases, not a single client ever said they were not showing up to their trial.

He's also shocked about what will happen if you don't show up. He's going to lose his investment of time and money if you don't show up. 

Why?

Simple. As the person bringing the lawsuit, you are claiming that your doctor violated the basic standards of medical care. YOU AND YOUR ATTORNEY MUST PROVE IT. You MUST show to the jury that you are more likely right than wrong that what you are claiming is true.

Your doctor doesn't have to prove anything. He doesn't have to disprove it either. He can just sit there quietly, without putting on any witnesses and hope that your proof is insufficient to justify a verdcit in your favor.

Since you are the one who was injured and since you are the one claiming your doctor was careless, the jury wants to see you. They want to hear from you. They want to understand what you went through. They want to know how your injuries have affected you.

THE JURY WANTS TO KNOW

If you don't show up, they'll want to know why. 
If you don't show up, they'll want to know what's preventing you from being in court and talking with the jury.
If you don't show up and do not have a good excuse, they'll be highly suspect about your claims.

Having your attorney explain that you're fed up is NOT a good excuse.
Having your attorney tell the jury that you fear being in court is NOT a good excuse.
Your attorney cannot even read your pretrial testimony to the jury unless he has a valid excuse that explains WHY you are not in court to testify in person.

If you don't show up, your case could be dismissed by the judge before even getting started.
If you don't show up, your attorney will likely be unable to prove to the jury that you are entitled to a verdict in your favor.
If you don't show up, the jury will never understand how your doctor harmed you and how your injuries affect your life.

If you don't show up, the jury will think you're not interested in the outcome.
The jury will rightfully believe that you have better things to do while they sit in judgment on your case, taking time away from their family.

HERE'S THE BOTTOM LINE...

You brought a case. You have to show up. It's that simple. 

The jury needs to hear from you.
The jury needs to see you.
The jury needs to understand, in your own words, what happened to you and how you're dealing with your injuries.

If they don't see you because you decided to screw it and hope your lawyer can try your case without you, you're mistaken. You'll get that call telling you your case has been dismissed all because you didn't care. After all these years.

That's not what you want to happen, is it?

To learn more about what happens if you fail to show up for your trial, I invite you to watch the quick video below...

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Defense Lawyer REFUSES to Make Opening Arguments at Beginning of Medical Malpractice Trial. Can He Do That?

Mon, 19 Jun 2017 10:28:00 EST

The answer is "Yes," he can.

The defense lawyer can 'choose' not to make opening arguments at the beginning of your trial. Instead, he can wait till after you finish putting on all your evidence and testimony. Then, he can make his opening arguments. Keep reading to learn why.

You've sued your doctor. For medical malpractice. For injuries you suffered because of his carelessness. Your case is pending here in New York. 

The doctor you sued says your case is baloney. He says you're faking your injuries and that your case doesn't have any merit. He also says he will never negotiate with you and will never settle your case.

This infuriates you. This makes you mad. This makes you angry. You know in your heart of hearts that your doctor didn't intend to harm you. Instead, he was careless. It was his wrongdoing that caused you harm. Permanent harm.

That means that your case is going to trial. That means that a jury of six people from the community will decide whether you are more likely right than wrong. That means it will take you about two to three years to get an answer from a jury. That's how long it takes to get to trial in a medical malpractice case here in New York.

In the weeks and months leading up to your trial, your attorney is preparing your case. There's a lot that goes into preparing for your trial. In fact, the best trial lawyers in NY believe that preparation is the key to winning any case.

WHO MAKES OPENING ARGUMENTS FIRST?

At the beginning of a medical malpractice trial, the attorney for the injured patient makes opening arguments first. We must explain to the jury why we are here. We must answer these questions during our opening arguments...

What are the facts that led this patient to court? What did this doctor do wrong? What should he have done? What injuries does this patient have now because of the doctor's carelessness? What can and can't she do now? What experts will be testifying to support our claim? What will they say when they take the witness stand? What weaknesses are there in your case?

An opening argument must be crafted to include all the elements necessary to make out a prima facie case. That simply means that I must show there is wrongdoing, I must show that the wrongdoing caused injury and I must show the injury is significant or permanent. I need to explain each of these things during opening arguments.

If I fail to tell the jury about each of these things, the defense lawyer will stand up after I make opening arguments and demand that the judge dismiss our case for 'failing to make out a prima facie case'. That means that there is the potential your case will be dismissed before the defense lawyer ever stands to make HIS opening arguments.

HOW OFTEN WILL A DEFENSE LAWYER USE THIS STRATEGY?

That can happen, though it is rare.

In my opening argument I want to tell the jury a story. A story of how doctors have certain rules, regulations and standards of care when treating patients. I need to explain that in your case, your doctor violated the basic standards of care. I need to explain, step by step, what your doctor did wrong. I need to explain what he should have done. I then need to explain how those departures from good care resulted in your injuries.

From a legal standpoint, explaining what your doctor did wrong and what he should have done instead helps explain liability. That's the first component of our opening argument. I then have to establish causation or what we call proximate cause. That's the link, the connection, between what was done wrong and your injury.

Then, I need to focus on damages. That's the different types of injuries and harm you suffered because of your doctor violating the standard of care.

After I am done making my opening, the Judge then turns to the defense lawyer and says "Defense counsel, you may make your opening remarks."

In this example, the defense lawyer stands up and says "Your Honor, at this time I choose NOT to make an opening argument but instead reserve my right to do so at the end of plaintiff's case." He then sits down.

The Judge is shocked. I am shocked. But the Judge recognizes he has the right to do this.

Why? This is a strategy that some defense lawyers use. It's rarely done, but it is available for the right case. Here's why a defense lawyer might choose to use this strategy.

THIS IS A RISKY STRATEGY

You see, as the patient bringing a lawsuit against your doctor, you have to show that you are more likely right than wrong that what you are claiming is true. In law we call that 'the burden of proof'. You're accusing your doctor of malpractice. You have the obligation to show a jury that you are right.

Show your proof. Show your evidence. Show your testimony. Let the jury decide if you are more likely right than wrong. If you are, you win. If you're not, you lose. The defense doesn't have to put on any evidence. They don't have to put on any testimony. They don't have to have any medical experts show up in court to testify. They could sit back and simply cross-examine each witness you put on. The defense could try and show that you are NOT more likely right than wrong without offering any evidence of their own.

This is a very dangerous strategy. The jury really gets only one side of the events when this strategy is used. The defense lawyer is relying on his cross examination techniques to try and destroy each witness' credibility. This again is a very risky strategy. Very rarely used.

Some defense attorneys may try to modify this strategy. A defense lawyer may feel that you have a weak case. He may feel that your attorney may not be up to speed and may not make out the elements needed to proceed forward. He may think your trial lawyer is not very good and there's a possibility he can get your case dismissed after opening argument.

In that case, he'll tell the Judge he wants to hold off with his own opening arguments until after your lawyer has put on all the evidence and testimony he needs to PROVE your case. What he's really hoping is that your lawyer screws up opening arguments. That's his first shot at getting your case dismissed. 

The defense lawyer will immediately get up from his chair and say "Judge, I move to dismiss the patient's case as her lawyer has failed to establish the elements needed to prove a case in his opening arugments." The Judge will likely deny his request. (As a side note, judges usually prefer to have these cases decided on the merits rather than on a legal technicality which might be reversed on appeal.)

Assuming the Judge denies the defense lawyer's request to immediately dismiss your case after opening argument, he now expects to cross-examine each witness your lawyer puts on to support your claim. He's hoping he can destroy their credibility. Then, after your lawyer is done with all the evidence and all his witnesses, he'll tell the Judge

"Your Honor, the Plaintiff rests."

Now it's showtime. The defense lawyer stands and addresses the Judge.

"Your Honor, the defense moves to dismiss the patient's case for failing to make out a prima facie case as a matter of law!" the defense attorney yells out with confidence. The Judge hesitates. He's weighing what to do. He's deciding whether he can or should do this. More often than not, the Judge will deny this request. He will likely want the jury to make the decision about whether you are entitled to a verdict in your favor.

If the judge thinks the facts are in dispute here, he will say there are questions of fact that must be decided by the jury. If the facts are not in dispute and the Judge must make a legal ruling, then it's possible he'll make an immediate decision about whether to dismiss your case or allow the defense to proceed with any proof they may have.

If the judge decides to deny the defense lawyer's request to throw out your case, the defense lawyer will likely make his opening arguments at that time. "Your Honor, in light of your decision to submit this case to the jury, I ask to make my opening arguments at this time."

"Granted," says the Judge. "Proceed with your opening argument counselor."

At this point, the defense lawyer will now make his opening arugments. He has the benefit of having heard your lawyers' argument and has cross-examined each of your witnesses. He can explain "Ladies and Gentlemen, we will show that Dr. Jones did nothing wrong here. He treated the patient appropriately. Nothing he did or didn't do caused her injuries. Besides, her injuries really are not as bad as she claims."

"You've heard from Dr. Gold. We dispute his testimony and we will be bringing in a world class surgeon to show you why Dr. Gold is wrong. You've heard from Dr. James. We think his testimony was full of baloney. We'll be bringing in a board certified gynecologist to show you how wrong Dr. James really is. Then, when we are done with our witnesses and our evidence you'll see that Dr. Jones did nothing wrong and I hope your verdict will reflect that reality."

Let's get back to the headline of this article. Can the defense "CHOOSE" to hold off with his opening argument during a trial? The answer is yes, he can. If he chooses to use that strategy, that simply defers when he'll make his oepning remarks. I will tell you that I have been in practice for almost 29 years in New York. I have NEVER seen a defense lawyer not make ANY opening argument at some point during trial. That would be extremely risky.

To learn why the best trial lawyers NEVER read their opening arguments, I invite you to watch the quick video below...

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Why the BEST Trial Lawyers in New York DON'T Do a Touchdown Dance When They Score Points at Trial

Sat, 03 Jun 2017 08:23:00 EST

Imagine you're in the middle of trial.

It's a medical malpractice trial.

You've sued your doctor.

Claiming he was careless.

Claiming his carelessness caused you injury.

Claiming your injury is permanent.

Your doctor says your claim is full of baloney.

He says he did nothing wrong.

He says you caused your own injuries.

He also says that if he did something careless, it didn't cause your injury.

Then, as a final twist of the knife, he argues that your injuries aren't that bad anyway.

There's no way your case will be settled.

The defense refuses to negotiate.

That means your case will go the distance.

To trial.

After two or three years of hard-fought litigation.

You'll finally get to trial.

You'll get to present your evidence.

You'll get to present your testimony.

The jury will hear your medical experts.

The jury will hear the defense witnesses.

They will hear from the defense's medical experts as well.

Six members of the community will decide if you are more likely right than wrong.

The jury will get to listen to cross-examination of the defense witnesses.

They will also be watching closely cross examination of your witnesses.

During cross examination, an attorney's goal is to  show that the witness is lying.

His goal is to show that he's being less than truthful.

His goal is to show that his testimony is inconsistent.

His goal is to show the jury that this witness cannot be believed.

It's really to destroy his credibility.

There are many ways to do this.

Imagine if your attorney scores a few points and is able to show the witness is shading the truth.

Or maybe he's confronted with an outright lie.

Your lawyer would love nothing more than to show the jury that you and he were right.

He'd love to stand in front of the jury and scream out loud and clear "SEE? I TOLD YOU HE WAS A LIAR!"

But he can't.

What if he were to do a touchdown dance after scoring some points with this opposing witness?

Do you think the jury would appreciate it?

Do you think the judge would appreciate it?

Do you think it makes the attorney look professional?

The answers are no, no and no.

It's never appropriate for an attorney to gloat during trial.

It's never Ok to do a touchdown dance after making your point.

It's showboating.

The better practice is to make your point and move on.

The jury knows what you just accomplished.

The judge knows what you just got the witness to do.

The jury will remember this point during their deliberations.

Besides, on closing argument, your attorney is going to remind them of this critical point.

On the other hand, imagine your lawyer has just devastated the defense's expert.

He's just shown the jury that he was wrong.

He's just proven to everyone in the courtroom that testimony he gave in another case clearly contradicted what he's saying in your case.

Your lawyer looks to the jury and does a fist pump.

He takes that imaginary football and spikes it in the end zone.

He starts jumping up and down in the courtroom for joy that he just destroyed the opposing expert.

This would make your attorney look ridiculous.

In the courtroom, there's no place for these antics.

On the playing field, in professional football, sure.

It's done all the time.

Not in the courtroom.

Not in a medical malpractice trial.

Not in a car accident trial.

Not in a wrongful death trial.

Not for your attorney.

Not for the defense attorney.

It's just not done.

To learn more about why it's not done, I invite you to watch the quick video below...

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Why Ignoring a Weakness in Your Case Will Cause Your Case to Explode on Closing Arguments

Thu, 01 Jun 2017 19:10:00 EST

Let's say you sued your doctor.

For medical malpractice.

You claim he was careless.

You believe his carelessness caused you harm.

You know your harm is permanent.

You know your harm is disabling.

You had no choice but to sue him.

To obtain money as a form of compensation for your injuries.

Let's say you failed to do what your doctor told you to do.

Let's also say you delayed in going for tests your doctor wanted you to have.

You delayed your own diagnosis and treatment.

You had excuses.

You had your reasons.

You tell your attorney not to focus on what you did and how you delayed your own treatment.

You want your attorney to pound away at your doctor for not treating you appropriately.

For not treating you in accordance with good and accepted medical practice.

Your attorney agrees with this strategy.

Your attorney convinces himself that by focusing all of his energy on what your doctor did wrong, the jury will ignore your own actions that caused part of the delay in diagnosing your cancer.

He is mistaken.

Badly.

This may be a fatal tactical mistake.

A mistake that will likely backfire.

A mistake that rookies make.

A mistake that an experienced attorney would never make.

You can NEVER ignore a weakness in your case hoping the jury will ignore it.

You can NEVER ignore a weakness by thinking that the defense will not focus on it.

Instead, they will hound you for not addressing it.

The defense will focus a good deal of their energy showing the jury that you are intentionally ignoring it.

The defense will argue that you have no defense to your actions that caused or contributed to your injuries.

Ignoring a weakness in your case is like an ostrich sticking his head in the sand hoping the lion nearby won't see him.

An attorney who (metaphorically) sticks his head in the sand and intentionally ignores a key weakness in your case is doing you and your case a disservice.

The better way to address this is to workshop the weakness.

What this means is to develop a logical explanation for why and how this arose.

To explain and justify why you did not follow through with your doctor's recommendations.

Justifying and explaining will go a long way to undermine the defense attacking your weakness.

You MUST attack your weakness.

You MUST admit your weakness to the jury.

You MUST 'confess' your weakness in the case.

Then, offer a logical explanation.

If you ignore it, the defense will have a field day during closing arguments.

He will argue that you're trying to hide your own careless actions.

He'll argue that you're deceiving the court.

He'll argue that you have no defense to your own actions.

If you did, you'd have addressed it and offered an explanation.

He'll ask the jury to hold you totally responsible for your own injuries.

An experienced defense lawyer will take this one little weakness and make it a big part of his defense.

You and your lawyer cannot ignore your weaknesses.

You must confront it head on.

You must confront it first.

Failing to do so could destroy your case.

To learn about a doctor who altered a patient's medical records, I invite you to watch the quick video below...

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If Your Attorney Makes This Argument During Closing Remarks at Your Trial, He Just Guaranteed the Other Side Will Immediately Appeal

Thu, 01 Jun 2017 10:03:00 EST

Let's say you sued two doctors.

For medical malpractice.

You claim they were both careless.

You claim their carelessness caused you harm.

You claim your injuries are permanent.

Both doctors disagree.

They say you're full of it.

They say they did nothing wrong.

They say that if they did something wrong, so did you.

They also say that whatever they did, didn't cause your injury.

They also argue that your injuries aren't that bad.

They fight your case every step of the way.

Through two years of litigation.

Both refuse to settle.

Both refuse to negotiate.

Your attorney prepares your case for trial.

He has no other choice.

A jury will have to decide if you're more likely right than wrong.

Six members of the community will have to decide if you deserve a verdict in your favor.

Six jurors will have to decide if your doctor violated the basic standards of medical care.

Six members of the community will have to decide if their wrongdoing caused your injury.

If the answers to those questions are yes and yes, these six people will have to decide how much money you are to receive.

Let's look at this scenario...

During jury selection one of the doctors whom you sued gives in.

He realizes he runs the risk a jury will find him responsible for your injuries.

He takes a calculated risk.

He decides he's better off to try and settle with you instead of waiting for a jury to decide this case.

He's willing to negotiate and try to get out of this case before it ever goes to a jury.

There's much uncertainty and risk by having a jury decide the issues involved in your case.

He understands there's much sympathy for you even though the judge will tell the jury they're not to consider sympathy in their decision.

He is able to successfully negotiate with your attorney to get out of your case.

You're happy that he settled with you.

However, that leaves the other doctor to deal with at trial.

The jury is not told anything about the settlement with that one doctor.

They are not told why he's no longer in the case.

They are not told how much he settled for.

They are not to concern themselves with why he's no longer in the case.

Trial lasts two weeks.

Two weeks of torture.

You go through the highs and lows of every trial.

Some days you're floating on cloud 9 knowing everything is going your way.

Other days you feel as if the earth has opened up and swallowed you and your case.

You feel like you're sinking.

This up and down emotional high and low is known to occur in every single trial.

It happens on both sides.

You've now reached the end of your trial.

All the witnesses have testified.

All the exhibits have been introduced as evidence.

There is no more testimony to be heard.

It's time for the attorneys to make closing arguments.

That's the time for your lawyer to show the jury why you're entitled to a verdict in your favor.

That's the time for your attorney's passion about your case to shine.

That's the time for your attorney to draw conclusions, or better yet, to let the jury draw their own conclusions that naturally lead to a verdict in your favor.

This is the time to connect the dots and show the jury you are entitled to a verdict in your favor.

"Plaintiff's counsel, you may begin your closing remarks..." the judge says.

Your attorney gets up and begins.

"Ladies and gentlemen, the only reason we're here now is because Dr. Nogoodnick failed to settle this case. He failed to settle before trial just like Dr. Doolittle did. At least Doolittle realized he had no chance by taking this case to verdict and settled out with us. But no. Not Dr. Nogoodnick. He wanted to take a risk and have you decide this case..."

This argument will get an immediate objection from Nogoodnick's trial attorney.

"OBJECTION JUDGE! THAT'S IMPROPER! Plaintiff's counsel cannot say that. I demand an immediate mistrial!" the defense lawyer yells.

At this point, the attorneys and the court have invested weeks into this case.

The trial judge will probably deny this request, knowing full well that this issue will be immediately appealed if Dr. Nogoodnick loses his trial.

Why?

Because it's legally inappropriate for your attorney to mention that Dr. Doolittle settled out.

It's legallly inappropriate for your lawyer to argue that the only reason the trial is till going on is because Dr. Nogoodnick hasn't settled this case.

The reality is that Nogoodnick has no legal obligation to settle at any point.

That's a tactical decision that can be made at any time.

Whether he chooses to settle or not is not an appropriate argument to make during closing arguments at your trial.

If your attorney does make that mistake, he has just guaranteed an immediate appeal if Nogoodnick loses.

To learn why it's never a good idea to read opening arguments in front of the jury, I invite you to watch the quick video below...

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These news come from The Law Office Of Gerald Oginski, LLC Blog.