The judge wouldn’t allow it.
He wanted trial to start on July 1.
This date had been set in stone for months.
On April 5 the attorneys had appeared in court.
For a final settlement conference.
The plaintiff’s attorney was there.
The two defense attorneys were there.
The judge was there.
Before this conference, the case came on for a settlement conference in March.
It was supposed to give the attorneys a chance to explore settlement.
It was a chance for the judge to see what settlement positions each side was taking.
The two defense attorneys weakly told the judge that their insurance companies had not yet evaluated the case for the purposes of settlement.
The judge wasn’t happy.
He wanted to move this case forward.
It was a medical malpractice case.
There was no reason to delay this case going to trial.
The judge knew it.
The plaintiff’s attorney knew it.
The defense attorneys just didn’t care.
They weren’t the trial attorneys.
They had no skin in the game.
The judge knew each of the law firms involved.
They were regulars in his courtroom.
They had many cases in front of him.
He knew many of the lawyers in each firm.
He knew he could give each firm some leeway with scheduling.
It’s customary.
Despite this familiarity with the law firms, the judge felt this case needed to be resolved.
It had been on the trial calendar an inordinate amount of time.
It was delayed because of appeals by the defense attorneys.
Appeals they lost.
Now was go time.
Either sh*t or get off the pot.
“What’s your settlement position?” the judge asked the defense lawyers.
“Uh Judge, our carriers still have not completed their in-house evaluation. Can we get some additional time? Can we come back next month with an answer?” one defense lawyer asked.
The judge turned to the injured patient’s lawyer, the plaintiff’s lawyer.
“Do you have any problem if I put this over to next month?” the judge asked.
The patient’s attorney said “No problem judge, but I need to get this case tried before the summer as I have a scheduled family vacation and my experts will be unavailable if this goes beyond July,” the attorney said.
Next month came quickly.
On April 5 the three attorneys appeared in court.
For a final settlement conference.
The plaintiff’s lawyer wanted to find out, before going into speak to the judge, what the defense’s settlement posture was.
He saw the trial attorneys in the courtroom.
He made his way through the throng of other lawyers waiting for their conferences and shook their hands.
“So, what’s the conclusion? Are you ready to talk? Do you have money?” the plaintiff’s attorney asked them with great interest.
The defense attorneys responded in unison.
“This case is ‘no pay’.
We’re going to trial.”
Well, that was that.
Now he knew.
Now he knew this case wouldn’t be settled.
The attorneys sat in the courtroom, on opposite ends.
Waiting for their case to be called.
They waited two hours.
Finally, the clerk called their case.
They all marched into the judge’s private chambers.
The first thing the judge asked was “Well counsellors, do you have money to offer today?”
The defense attorneys told the judge they did not.
They told the judge this was a ‘no pay’ case.
The judge looked at his trial calendar.
He randomly picked a date on his calendar that was open.
He looked up.
He commanded that jury selection would begin on July 1.
“There will be no extensions. No adjournments. No excuses. This trial is set in stone. Get your witnesses lined up. Jury selection begins July 1. Trial will start the next day, July 2. We will not have court on July 5. Make sure you have your trial briefs and requests to charge for me when you appear on July 1. See you then,” the judge commanded.
With that, all the attorneys got up to leave, exactly two minutes after entering.
They now had two months to prepare their case for trial.
Two months is the window in which they now have to prepare their witnesses.
Two months to get their exhibits ready.
Two months to subpoena hospital records into court.
Two months to subpoena the necessary witnesses to appear at trial.
Two months to prepare legal briefs for the judge.
Two months to prepare ‘requests to charge’ which are specific sections of law that each attorney wants the judge to explain to the jury after closing arguments are made.
Two months to prepare their clients for trial testimony.
Two months to pay their medical experts to set aside time for them to appear in court.
Two months is not a lot of time.
On the other hand, two months can feel like a luxury when you are used to having only days or a few weeks to prepare a case for trial.
At this point, each side has now dug in.
The injured patient has claimed that her doctors violated the basic standards of medical care causing her permanent harm.
The defense attorneys have thrown up their typical defenses.
First, they claim they did nothing wrong.
Second, they claim that even if they did something wrong, so did the patient.
Third, they claim that the patient’s injuries are not really as bad as she is claiming.
The defense refuses to pay.
The defense refuses to negotiate.
The defense believes they will be successful at trial.
The defense is willing to spend endless amounts of money to defend their doctors against this malpractice claim.
The plaintiff has medical experts who confirm there was wrongdoing.
The plaintiff has medical experts who believe, with a reasonable degree of medical probability, that the doctors’ carelessness was a cause of this patient’s injury.
These medical experts all agree that her injuries are permanent.
Each side is preparing for battle.
Their weapons are their words.
Their weapons are pretrial testimony given by the litigants during the pre-trial process known as discovery.
Their weapons are the medical records.
Their weapons are the stories each side brings to court.
The key weapon for each side is something intangible.
It can’t be held.
It can’t be seen.
It’s not an exhibit.
Want to know what it is?
It’s the MOST IMPORTANT part of any civil trial.
Think you know what it is?
It’s YOUR CREDIBILITY!
It’s your believability.
Are you trustworthy?
If the jury doesn’t believe you, you’ve got a problem.
If the jury doesn’t believe your medical expert, you’ve got a problem.
If the jury doesn’t believe your lawyer, you’ve got a problem.
Credibility is the most important part of a trial.
The plaintiff's attorney schedules his witnesses.
The medical experts rearrange their schedules just to accommodate the attorney.
They rearrange their patient schedules.
They rearrange their scheduled surgeries.
The plaintiff’s attorney has his family vacation all booked.
He expects this trial to last one and a half weeks.
He goes through his checklist as the trial date is quickly approaching.
Subpoenas…check.
Medical experts lined up…check.
Medical expert fees…paid.
Review all pretrial testimony…check.
Identify who the defense’s experts are…check.
Obtain dirt on defense’s medical experts…check.
Prepare legal briefs…in progress.
Prepare requests to charge…in progress.
Get medical records into court…in progress.
Get injured patient into office for trial prep…next week.
Prepare opening argument…in progress.
Prepare closing argument…in progress.
Prepare cross examination of defense’s medical experts…in progress.
Prepare enlargements and blowup exhibits for jury…done.
Get medical textbooks and literature to use for cross-examination…in progress.
Meet with and prepare medical experts…in progress.
Get investigator to do social media search of doctors…in progress.
Get investigator to dig up dirt on medical experts…in progress.
Get trial transcripts from other law firms on testimony previously given by defense medical experts…in progress.
At the same time that the plaintiff’s lawyer is preparing this case for trial, he must still attend to his other cases.
Other cases coming up for trial.
Other cases going through the pre-trial litigation process.
Other cases needing appearances in court.
Other cases that must be prepared for trial.
The defense attorneys are doing the same exact thing.
At least that’s what the plaintiff’s attorney thought.
Turns out, they weren’t doing the same thing.
Turns out, they ran into a few glitches.
Scheduling problems.
Problems with their medical experts.
Problems scheduling their doctors for trial.
The doctors who were being sued were scheduled to be away on vacation when trial was scheduled to start.
The doctors refused to reschedule their vacation.
The smart thing would have been for the defense attorneys to immediately notify the court of this scheduling problem.
I’m talking same day as the April 5 conference when the judge commanded jury selection to begin in on July 1.
That would have been the smart thing.
That would have been the right thing to do.
But they didn’t.
Alternatively, the defense lawyers should have notified the court and the plaintiff’s attorney as soon as they learned of these scheduling problems.
That would have been the smart thing.
That would have been the right thing to do.
But they didn’t.
This would have given the judge an opportunity to try and accommodate each side…or not.
That would have given the plaintiff’s attorney the opportunity to slow down his trial preparation efforts…or not.
That would have been the smart thing.
That would have been the right thing to do.
But they didn’t.
The defense lawyers should have, as a basic courtesy, contacted the plaintiff’s attorney to let him know of these scheduling problems.
That would have been the smart thing.
That would have been the right thing to do.
But they didn’t.
It’s now July 1.
The plaintiff’s attorney is ready for trial.
He’s ready for war.
He’s ready for jury selection.
He puts on his battle uniform when he awakens that morning.
A crisp navy suit.
A clean white button down shirt.
A bright red power tie.
He grabs his obligatory shiny black wingtip shoes.
He wears his ‘lucky’ socks.
He puts on a beautiful soft spoken watch his wife gave him for his birthday. Clean white face. Silver markings with black leather strap.
No cologne. It could be offensive to potential jurors.
He gets his well-worn black leather trial bag.
A briefcase would be a better description.
It was overly large.
It was heavy.
It was only half full.
It was used as a scare tactic.
It was used as a psychologic intimidation tactic.
For when the lawyers walk into the courtroom and place their things at their respective tables.
Having your opponent see you walk in lugging a heavy large bag and thrusting it onto counsel table with a big thud, can have a psychological effect.
It might cause your opponent to wonder “What’s he got in that bag besides his lunch?”
“What could be so heavy?”
“What does he have up his sleeve that could hurt my case?”
Jury selection will start at 9:30 a.m.
The plaintiff’s attorney arrives fifteen minutes early.
He checks in with the jury clerk.
He asks whether there are enough jurors that morning.
He’s assured they have plenty of jurors.
He knows the drill.
He’s done this many times before.
He’s tried many cases in this court house before.
Check in with the jury clerk.
Wait around for your opponents.
When everyone has arrived, let the jury clerk know.
Then, get assigned to a windowless room.
Enter the empty windowless room.
It’s just you and your opponents.
Waiting.
Waiting for the jury clerk to usher in 30 potential jurors with their filled-out questionnaires.
The waiting is awkward.
You don’t want to make small talk with your opponent.
There’s nothing to look at on the walls; they’re bare.
There’s nothing to do except wait.
Even when you know your opponent and have a good working relationship with him, it’s awkward waiting around for the jurors to arrive.
A little while later, the jury clerk arrives.
There are no horns. There are no sirens. There is no pomp and circumstance.
It’s a quiet affair.
The jury clerk just shows up.
He points the way for the jurors to enter the jury selection room.
They shuffle in wondering where they are going and what’s going to happen in there.
They are told to take seats anywhere.
Anywhere except for the first six seats in the first row.
Those will be filled shortly.
The jury clerk hands a stack of cards to the plaintiff’s attorney.
Each card identifies one potential juror.
Those cards are then placed in a rotating drum on the table.
The attorney then gives it a few spins after closing the door to the rotating drum.
When it comes to a stop, the plaintiff’s attorney opens the drum door, reaches in and pulls out six cards randomly.
In a loud and clear voice he announces the names of the first six potential jurors he will question.
With some hesitation and trepidation, each of those people called make their way up to the empty seats in the front of the room.
At that point, the plaintiff’s attorney begins.
“Welcome! My name is Gerry Oginski. I am a trial attorney and I have the privilege of representing Mrs. Jones in this lawsuit she has brought against her surgeon, Dr. Shaky Hands. I’m going to start asking questions of the first six of you called up here to the front. My goal is to tell you a little about this case and see whether you’re the right person to sit in judgment on our case.”
I have the opportunity to ask the jurors questions about their beliefs. About their feelings. About who they are closer to philosophically.
“Mrs. Gonzalez, are you a little closer to the people who believe that doctors can do no wrong? Or, are you a little closer to the people who believe that doctors should be held accountable for their actions?”
**Let me interrupt you right here…**
This is what happens when all the attorneys arrive for jury selection and actually start to pick a jury.
That’s NOT what happened here.
What happened here was different.
What happened here was frustrating.
First, the defense attorneys did not arrive on time.
They finally showed up thirty minutes late, at 10:00 a.m.
During that half hour the trial judge called the jury clerk to make sure we had started jury selection.
“No judge. The plaintiff’s attorney has been here for a while, but the defense lawyers have not shown up,” said the jury clerk.
At 10:00 a.m. the defense lawyers finally showed up.
No apologies were forthcoming from either of them.
The plaintiff’s attorney said “We’re in jury room #3. This way…”
One defense attorney said “Now hold on just a second. We need to see the judge.”
“Why?” asked the plaintiff’s attorney.
“We have a scheduling problem,” one defense attorney said.
“We really need a few more weeks,” he continued.
The plaintiff’s attorney was furious.
“What?? What are you talking about? This trial date was set in stone! I have my experts lined up. I have my witnesses lined up. I’ve paid my experts already. They’ve rearranged their lives to be here as scheduled. There’s no way I’m agreeing to any adjournment. This is bullshit…You didn’t even have the courtesy of calling or emailing me to tell me this? OUTRAGEOUS!” the plaintiff’s attorney seethes venom.
They tell the jury clerk there’s a problem and they need to see the judge.
The jury clerk alerts the judge that they’re coming up to see him.
They all take the elevator up to the 11th floor.
That’s where the judge’s private chambers are.
The silence in the elevator is brutally awkward and uncomfortable.
The elevator door opens.
The two defense lawyers bolt out and walk over to the court officer in charge of security for the floor.
“We need to see the judge. We have a problem,” they say.
The court officer calls the judge’s secretary.
After a moment of identifying who the attorneys are and which case this is, they are told they can go into the judge’s chambers.
The judge is sitting at his enormous desk.
His private office is huge.
His windows command a magnificent view of the surrounding neighborhood.
The judge’s law clerk is sitting near the judge.
He’s paying close attention.
He’s the judge’s right hand man.
He drafts many of the judge’s legal decisions.
He crafts many of the judge’s positions on cases before him.
He has the judge’s ear.
He is wise and trusted resource for the judge.
Still, the judge makes the final decisions on everything his law clerk does.
As the three attorneys march into his private office, the judge calmly looks up and demands to know “What’s the problem?”
Defense lawyer #1, grey suit, blue tie, is the first to pipe up.
“Judge, I have a scheduling problem. My client, the doctor is away on vacation. My expert is not available next week. I need an adjournment please.”
The judge calmly turns to defense lawyer #2.
Brown suit.
White shirt.
Yellow striped tie.
“What’s your problem?” the judge asks in a demanding fashion.
“I have to take my daughter to college orientation later this week. I’ll be away for four days as she’s heading to California for college,” he says with pride.
The judge looks at the plaintiff’s attorney.
“Are you ready for trial?”
“Yes sir. I am,” the plaintiff’s attorney responds with confidence.
The judge looks back at the defense attorneys.
“Your requests to adjourn this trial are denied. Go pick a jury immediately. We’re starting trial and opening arguments tomorrow morning at 9:30 a.m. sharp! You are all dismissed!” the judge says as he cracks the proverbial whip.
The defense attorneys try to protest the judge’s harsh proclamation.
They desperately try to get this matter pushed off to another date.
If not a month, maybe a week.
If not a week, how about a few days?
The judge looks up again.
With a direct stare, he tells the defense attorneys
“Your requests are denied. Pick a jury now! If you are not downstairs in the next fifteen minutes in the jury room, I will strike both of your answers. Now go!” the judge commands.
This is a big threat.
You see, the judge has discretion to do many things to punish an attorney who refuses to listen.
Striking a defense lawyer’s answer is a very big deal.
First, what’s an answer?
Let me tell you what an 'answer' is.
When a lawsuit is first started, those papers are known legally as a ‘complaint’.
The complaint sets out the allegations being made against a careless doctors.
An attorney must take those allegations and deliver them to the people you are suing.
The people you are suing are known as defendants.
When those allegations are delivered to the doctors you are suing, the doctors must send the papers to their medical malpractice insurance company and to the attorneys who will be representing them.
The attorneys then must reply to those allegations.
That document is legally known as an answer.
So what’s the big deal if a judge says “I’m going to strike your answer?”
It means that the injured patient automatically wins the first part of her case.
It means that the doctors never answered the allegations.
They defaulted.
Imagine the Yankees showing up at Citifield to play the Mets.
Imagine the Mets don’t show up for the game.
The Yankees get an automatic win.
Same thing in a civil lawsuit.
That means that if the doctors never answered the allegations, the injured patient get’s an automatic win.
She no longer has to show that she is more likely right than wrong that the doctor was careless.
That's now a given fact.
Instead, the judge will now simply set her case down for trial.
A trial that will only look at how much money she is to receive for her injuries, her suffering and her pain.
Legally, that’s known as a trial on damages only.
It's also known as an 'inquest'.
That’s not good for the defense lawyers.
That’s not a good position for the doctors or their insurance companies.
That guarantees the injured patient will receive money as compensation.
It’s just a question of how much.
The defense lawyers were frantic.
They didn’t know what to do.
They turned to the plaintiff’s attorney and begged him to agree to an adjournment.
“Screw both of you,” the plaintiff’s attorney said. “I’m going down to the jury room. See you there.”
There was no love lost here.
The defense attorneys were in a pickle.
The plaintiff’s attorney again checks in with the jury clerk.
He walks by jury room #3.
The jurors are patiently waiting for the attorneys to enter and begin jury selection.
Five minutes go by.
The defense lawyers are nowhere to be found.
Ten minutes go by.
The defense lawyers still have not come down.
Two minutes later, both defense lawyers come walking down the hall.
They ask if they can speak to the plaintiff’s attorney away from the jury room.
He agrees and begins to walk with his adversaries.
The defense lawyers turn to him and tell him the insurance carriers want to talk now.
They’re willing to negotiate.
This is a surprise.
He wasn’t expecting this.
He fully expected this case to go the distance.
He expected this case to go to trial.
He expected to take a verdict on this case.
He expected to deal with appeals for the next two years on this case.
“What’s your best offer?” the plaintiff’s attorney asks.
They make him a low-ball offer.
“Go to hell,” he says and starts walking back to the jury room.
“Wait, wait, come back here…please…” they say.
Within moments they increase their settlement offer substantially.
The plaintiff’s attorney says no.
He knows they’re under the gun now.
He knows they’re not ready for trial now.
He knows he’s got them in a bad place right now.
He can squeeze them all he wants.
He can make them squirm.
He can try and get the most money for his client right now.
But at the same time, he can’t be overly greedy.
He knows he’ll have other cases with these attorneys in the future, as he has in the past.
He knows he’ll have other cases with these insurance companies, as he’s had in the past.
He knows they’ll now pay.
They’ll pay a premium for the aggravation and predicament they now find themselves in.
He also knows they won’t overpay.
If they do, they’ll take it out on him later, on another case.
He negotiates an excellent settlement number.
Higher than he thought he could get.
But less than he believes a jury would give him.
He immediately notifies the jury clerk that settlement negotiations are underway.
She notifies the trial judge about this new development.
The plaintiff’s attorney has to talk to his client.
She has the final say.
He will recommend the settlement to her.
However, it will be up to her to decide.
“I’ll be back. She’s waiting for me in the courtroom,” the plaintiff’s attorney says as he makes his way to the staircase.
Minutes later, he finds her sitting in the courtroom.
Waiting expectantly.
Waiting for word of what’s happening.
Waiting to hear about the jurors who will be sitting in judgment on her case.
He motions her to join him outside in the hallway.
“Good news,” he says.
“The defense finally caved in and made an offer.”
She asks “What’s the offer?”
He tells her.
She’s thrilled.
“What do you suggest?” she asks.
After a discussion about the risks of going to trial and taking a verdict compared to the guaranteed money that has been offered, he recommends accepting their offer.
She agrees.
He tells her she has to agree ‘on the record’.
“We’ll put the settlement on the record here in the courtroom. I’ll be back in a little while. Sit tight,” he says to her.
He then makes his way back to the defense attorneys waiting near the jury room.
“My client agrees to your offer,” the plaintiff’s attorney says.
“Excellent, but we have one condition…” brown suit defense attorney says.
“What’s that?”
“There can be no publicity associated with this case," grey suit says.
No press conference.
No news.
No website article or announcement.
Plaintiff’s attorney ponders that for a moment.
He says “No. That’s not acceptable. Let’s go pick a jury and get this trial started.”
The two defense attorneys have a quick hushed discussion with their backs turned to him.
Moments later, they turn around and say “Fine. Let’s settle this case and put it on the record.”
Plaintiff’s attorney is pleased.
He didn’t expect them to give up the no-disclosure request that quickly.
He immediately notifies the jury clerk that the case has settled and they need to put the settlement on the record in open court.
The attorneys are told to report to the trial judge back on the 11th floor.
The three of them pile into a crowded elevator this time.
The tension is not as palpable as it was earlier.
There’s almost a levity associated with the whole affair.
It’s almost pleasant now.
They again check in with the court officer who allows them entry to the judge’s chambers.
As the three attorneys walk in, the judge looks up from his desk and asks how much the case settled for. He also wants to know who paid what.
With a satisfied gleam in his eye, he tells the attorneys to report back to the courtroom and he’ll have a court reporter down there in a few minutes. He’ll take the bench and plaintiff’s attorney will call his client to the witness stand for the necessary questions.
“Thank you counsellors,” the judge says with finality.
Fifteen minutes later, the judge enters the courtroom.
The court officer yells out “ALL RISE, THE HONORABLE JUDGE OLIVER MISHUGENA VERKLEMPT PRESIDING.”
“Be seated,” says the judge to the packed courtroom.
The courtroom is packed.
But not for this case.
There are one hundred attorneys waiting in the courtroom.
For conferences.
With the law clerk.
With the judge.
Other cases the judge is handling.
They’re waiting for their case to be called.
The judge says to plaintiff’s attorney “Call your client to the witness stand.”
“Mrs. Jones, please come up here and have a seat in the witness box.”
She approaches and sits down.
The court reporter asks her “Do you swear to tell the truth?”
“Yes,” she replies.
“You may be seated,” she says.
This part of the case involves having the injured patient answer a few questions about the settlement. We want a public record that my client understands what it means to settle her case. I want to know from her, in her own words, that she is voluntarily agreeing to settle.
That nobody is pressuring her to settle.
That she realizes this is her one and only time to be at trial and that by settling her case, it is now over, forever.
I want the judge to know that she is not under the influence of any drugs or alcohol and that there is nothing impairing her judgment.
I want her to willingly verbalize her understanding of the settlement.
This will protect my client.
This will protect me.
This will protect the defense attorneys.
This way the client cannot come back later and say she didn’t understand the terms of the settlement. She can’t come back and say she wants more money at a later date. She can’t come back and claim that she wasn’t happy with her decision because I didn’t explain everything to her.
After I’m done asking her standard settlement questions and receiving appropriate answers, I’m done.
Before we wrap up, the judge has one final question for my client…
“Mrs. Jones, are you satisfied with the representation you’ve had with Mr. Oginski?”
“Yes, Judge, I am. Very happy,” she answers.
“Thank you Mrs. Jones. You may step down.”
I now say...“Judge, the parties to this litigation have agreed to settle this matter for the following amounts. These amounts are to be paid by the parties as follows…
The defendants agree to abide by Civil Practice Law & Rules and agree to make payment within the three week window upon receipt of the appropriate closing papers,” I say.
The defense attorneys chime in and say in unison “Agreed.”
“On behalf of my client, Mrs. Jones, I’d like to thank the Court for helping us resolve this case,” I remark.
The defense attorneys also feel the need to publicly thank the Judge for his help.
In reality, the judge squeezed them when they were vulnerable.
They’re not thankful for being in that position, but they were thankful they were able to settle this case without getting their heads handed to them.
None of this would have happened had the trial judge said “Yes, we can push this case off for another month.”
To learn even more about settlement conferences, I encourage you to watch the quick video below...
