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A Surefire Way to Put the Jury to Sleep During a Medical Malpractice Trial...Read Pretrial Testimony in a Boring Monotone

HOW TO PUT THE JURY TO SLEEP

Ask questions in a quiet way. Then, talk in a monotone. No, this isn't a joke. This is real. Lawyers really do this. I just saw it for my self today when I went to court with my son and daughter.

I wanted them to see a real trial. I wanted them to hear attorneys make objections. I wanted them to see a real jury listening to testimony. I didn't know if there would be any trials going on. I hoped for their sake there were. They were eager to come. We went in the afternoon.

When we arrived in Nassau County Supreme Court in Mineola, NY the parking lot was kind of empty. That wasn't a good sign. Upon entering the court house, the central jury room that normally has a few hundred jurors waiting around was totally empty. Not one single person there. That also wasn't a good sign.

I brought the kids into the ceremonial courtroom where the trial calendar is called each day. At least 100 to 200 cases are called each morning in this courtroom. It's usually packed wall to wall with lawyers waiting for their case to be called. At the moment we walked in, there was not a single person in the courtroom. It looked like a ghost town. Again, not a good sign for us, hoping to see an active case on trial.

The three of us made our way up the stairs to the third floor. That's where many of the courtrooms are. We walked up and down the hallway. Not a single person in the hallway. Again, not a good sign. All the courtrooms on this floor were completely empty. It had that ghost town feel. Weird. Very weird.

True, we were there right after lunch and some judges might be starting after 2:00 p.m. But it was now 2:15 p.m. and nobody was around. Strange. I said "Let's go upstairs to the fourth floor and see what's going on."

FINALLY! A CASE ON TRIAL!

The moment we walked upstairs, I knew there was an active trial going on. There was activity outside the courtroom. Peeking in through the glass in the door, I saw the jury being brought in. I saw the attorneys and the people in the back of the courtroom stand up . Then I saw the judge walk into the courtroom.

I motioned for my kids to enter this courtroom. I immediately followed. We sat in the last row in the back. That gave us a great view of the jury and of the attorneys. I knew what kind of case this was just based on who the attorneys were. I knew who they were. This was a medical malpractice trial.

The attorney sitting closest to the judge represented the injured patient's family. He is an excellent attorney. He's achieved many multi-million dollar verdicts and settlements. He's well-known throughout New York. The attorney sitting behind him was a senior partner in a medical malpractice defense firm here on Long Island. I tried a case against him many years ago.

I didn't have a chance to tell my kids any of this info and the trial was getting underway. The judge told the attorney for the family to proceed. I noticed he didn't have any witnesses he was calling to testify this afternoon. Instead, he pulled out a transcript. I knew what was coming.

"HE'S GOING TO PUT THEM TO SLEEP" I THOUGHT

He's going to start reading them a story. Almost like a bedtime story. The jury will appreciate it. Why? Because they've just had lunch. It's a beautiful day outside and now it's darker and a little warm in the courtroom. They're full from lunch. They're thinking about the lunch they've just eaten and how full they are.

It's nap time. 

Now remember, my kids and I had absolutely no idea what this case was about. We didn't know any of the facts. We were coming into the courtroom without any preconceived ideas about the people involved in the lawsuit or the attorneys representing each side. At least my kids were. I knew the attorneys. I had my own opinions of each and I'll keep my opinions to myself for now.

The family attorney starts reading from a booklet. This is testimomy that was obtained during this lawsuit. It's pretrial testimony. Given under oath. It was likely taken in an attorney's office. The family attorney was questioning a doctor who performed an autopsy in this case. That told me this was a wrongful death case.

During this pretrial questioning, the family attorney was there. So was the attorney for the doctor who was sued. There was also a court stenographer there to record all of the attorney's questions and all of the doctor's answers. There's no judge present. Nor is a jury present. But you should know that the answers given by the doctor carry the same exact weight as if she were testifying at trial.

I knew that since the family's attorney was reading the medical examiner's pretrial testimony, he either couldn't get her to come into court and testify or she refused to come in and testify. What that meant is that he needed to get this information in front of the jury in court. The only way to do that is to read to them the questions he asked and the answers she gave earlier in this lawsuit.

The jury will them be able to consider this testimony when they evaluate whether the family is entitled to a verdict in their favor. There is a problem using this tactic. It's boring. It's tiresome. It puts people to sleep. Especially when you're reading for a half hour straight. Especially when you're reading complex medical explanations about why this person died. Especially when it's right after lunch. Especially when you're reading in a monotone.

I WAS SHOCKED 

Shocked that this well-known and very successful attorney was reading in a monotone. He was putting me to sleep. I could barely hear him while sitting in the back of the courtroom. I heard a lot of medical terminology...

"Aortic valve," "Septum," "Transposition," "Cardiac pathology," "Neuropathology," and other similar phrases. These were highly technical terms that my kids did not have the benefit of having any explanation. I'm sure he had other medical experts testify what all this meant. But right now, I was falling asleep.

There is a strategy attorneys can use to spice up reading pretrial testimony. Especially complex and lengthy medical testimony that needs to be read to the jury. The better way is to have someone from your office play the part of the person being questioned. Let him get up on the witness stand while holding a copy of the transcript. Then, I can question him as if he is the witness testifying at trial.

My office witness can then 'read' the answer from the transcript. This way it appears as if I'm really questioning a witness. The only difference is that we're both reading from the same transcript. And of course the way to really spice up this question and answer session during trial is to get animated. Get excited. Raise my voice. Modulate my voice. Walk around the courtroom. 

THAT'S NOT WHAT THIS GREAT ATTORNEY WAS DOING

Instead, this excellent plaintiff's lawyer was standing in one spot. He was holding a transcript in one hand. His eyes were down, reading "Question: Dr. Jones, what was the cause of death here? Answer: There were multiple contributing causes of death..."

The attorney never looked up. He never made eye contact with the jury. He just kept reading page after page. It was dull. It was boring. It was unintelligible. It didn't make sense. After about fifteen minutes of this I had a slightly better understanding of what this case involved.

It appeared that a patient had cardiac surgery to replace an aortic valve. He needed it replaced because of aortic stenosis. That's basically where the valve gets worn out and now needs to be replace. Well, something happened to cause this patient to die. I couldn't tell if the patient died on the operating room table. Nor could I tell from our brief time in the courtroom when the patient died.

I did learn from this pretrial testimony being read in a monotone that the medical examiner who performed an autopsy of this patient who died determined that the valve was not put in correctly.

AHAA! FINALLY, A CLUE TO WHAT THIS CASE WAS ABOUT

What this pretrial testimony should have immediately established was that the aortic valve was not put in the right place. The surgery was not done in accordance with good surgical practice. As a result, this patient died. That should have taken only a few minutes to elicit from the medical examiner during her pretrial questioning.

Instead, the attorney droned on and on for a LONG time before getting to the key issue in the case. I could tell that he was working backward. He was going to use the autopsy and the medical examiner's findings to show that the primary reason this patient died was because the aortic valve was put in incorrectly. Had the valve been inserted correctly, this patient would presumably been alive today.

Then, he will likely need a medical expert to explain to the jury how these valves are supposed to be put in. If done correctly, he'd argue that this patient would be alive now.

This excellent lawyer was not animated while reading this testimony. He did not get excited. He didn't raise his voice. He didn't change the tempo of his voice. He didn't wake the jury up. Their eyelids looked like they were closing, like mine were. It's a shame really. He's a superb lawyer with an excellent track record.

Who knows, maybe he'll win this case. I don't know. All I do know is what I saw as an observer with my kids watching too. They had the same thoughts as I did. They didn't understand why it was so dull and boring. After leaving the courtroom, they wanted to see some exciting courtroom fireworks.

They wanted to see action. They wanted to hear oral arguments. They wanted to see attorneys jumping up and down yelling "OBJECTION!" I obliged them by heading over to the criminal court building and I'll share that story in an upcoming article.

To learn whether your doctor will immediately write you a check after getting a verdict in your favor, I invite you to watch the video below...


Gerry Oginski
NY Medical Malpractice & Personal Injury Trial Lawyer