Your doctor refuses to accept responsibility for what happened to you.
He refuses to admit he did anything wrong.
Now, you need additional surgery to fix the problem.
You're out of work for the past 6 months.

He hasn't even called you to check in on you.
You're furious.
You're upset.
You're angry.

You seek an attorney to see if you have a valid case.
He gets your records and has a medical expert review them.
The medical expert confirms that your doctor violated the basic standards of good medical care.
The expert also confirms that your doctors' negligence caused you permanent injury.

You sue your doctor.
He denies all of your allegations.
He says he did nothing wrong.
Then, she says that if he did something wrong, so did you Mr. Patient.

Then, he claims that if he did something wrong, whatever he did, did not cause you harm.
Then, to stir the pot even more, he claims that if he did something wrong and caused you injury, your injuries aren't really that bad.
Those are the typical defenses we see in these medical malpractice cases here in New York.

You say "Fine, I'll see you at trial!"

Your case takes two years to go through the entire pre-trial litigation process.
All documents have now been exchanged.
You've been questioned by the attorney for the doctor in a process called a deposition.
Lawyer's also call it an examination before trial.

I've had a chance to question your doctor as well.
It's time we notify the court that your case is technically ready for trial.
We do that by filing a document called a Note of Issue.
It simply alerts the court to the fact that all discovery is now complete and we need to be placed on the trial calendar.

Once on the trial calendar, we will sit and wait for many months until your case gets called for a pre-trial conference.

However, you should know that before you ever get to trial, the defense will do everything possible to try and get your case thrown out. When you learn this, you're furious. You're upset. You're angry.

You thought that once discovery was over and your case goes on the trial calendar, it's simply smooth sailing to get to trial. Ah, no. That would be incorrect.

The defense is going to put up one final obstacle before you ever get to trial.
They're going to ask the judge to throw your case out, claiming that you don't have a valid case. 
The defense is going to claim that there are no questions of fact for the jury to answer.
Instead, they're going to argue that there are only questions of law for the judge to resolve.

As a final last-ditch effort, the defense will claim that medically, your case is unsound and anyway, there's no factual dispute that requires the jury to resolve.

They do this by making a formal written request to the judge.
This is known as a motion for summary judgment.
When they make this request, it's as if we're going to trial. The only real difference is that this trial is happening on paper only. There are no witnesses testifying in court. That means that whatever evidence has been obtained in the years leading up to this, has to be given to the judge to evaluate.

Legally, it means the defense has to present evidence, in admissible form, as if it's being presented at trial to the judge in front of a jury. They have to submit deposition transcripts, medical records and expert witness reports confirming their position. In response, I have an opportunity to oppose their request.

I get to offer the court our version of the events and provide proof to support the fact that you have a valid case. I also have to present proof as if we're at trial. That means including deposition transcripts, photos, medical records, expert reports known as affirmations and any other evidence I believe shows we are more likely right than wrong.

Importantly, I have to show the court that there are significant material questions of fact that can only be resolved by a jury. If the judge finds in our favor, your case will proceed to trial. If the court believes the defense's argument, then your case will be dismissed.

In this scenario, the defense has made their request to dismiss your case.
I have opposed it.
After many months, the judge has ruled in our favor.
The judge disagreed with the defense and felt that there were material questions of fact that required a jury to resolve.

When you hear this, you're thrilled!

You won!
You think you won your case.
You think there's little left to do.
That thinking would be incorrect.

Although you won the motion, you have not won your case...yet.

What you've won is the right to proceed to trial.
You've won the last obstacle to getting to trial...or so you thought.
You've defeated the doctor and his attorney and convinced the judge that your case needs to be resolved by jury verdict.

You think from here on out that it's smooth sailing to trial.

Ah, no. That's not the case.
Your attorney calls you up shortly after winning the motion for summary judgment and gives you the news.
"I just want to let you know the defense has indicated they're going to appeal the decision that just came down in your favor," your lawyer tells you.

"What does that mean?" you ask.
It means the defense thinks the trial judge was wrong and made legal errors in his ruling.
It means the defense is going to try and convince a panel of appellate judges that the trial judge was wrong.
If they can do that, it's possible your case may get thrown out.

If they can't, then you're on the way to trial.

To learn more about summary judgment motions, I invite you to watch the video below...

Inside the delivery room, you’d never know it was dark outside.

The bright lights were pointed on her belly.

The overhead fluorescent lights illuminated the room.

There was a nurse with a surgical mask and face shield running around the room.

There was a stern-looking anesthesiologist sitting by the patient’s head adjusting dials and entering data into a computer.

The husband was sitting on the other side of his wife’s head.

In the middle of the room, on the surgical table was a woman about to give birth.

She’d been in labor all day.

This was her first baby.

She was excited.

Her husband was excited.

They read all the books on what to expect.

They heard stories from their friends and relatives about what to expect.

Now, here they were, in the middle of the operating room.

She didn’t expect to have a cesarean section.

She didn’t want a cesarean section.

She wanted a natural delivery.

A vaginal delivery.

She wanted a home delivery actually.

Her husband convinced her that was a bad idea.

She didn’t want an epidural to numb her labor pains.

Her obstetrician convinced her that was a bad idea.

“Why would you want to be in pain and uncomfortable when you can enjoy your delivery?”

The nurse said she had to prep her for the c-section.

She splashed brown liquid on her belly and then wiped it off.

The husband watched as the scrub nurse moved with precision, gathering instruments for the obstetrician.

From the time husband and wife entered the delivery room, the obstetrician was nowhere to be found.

Five minutes went by.

Ten minutes went by.

She wasn’t on the fetal monitor.

Nobody was monitoring her baby while she’s waiting.

Waiting to be prepped.

Waiting for the anesthesiologist.

Waiting for the obstetrician.

Waiting to start the surgery so she can meet her little one she’d been carrying for nine months.

Fifteen minutes go by.

She asked the nurse “Where’s my doctor?”

“He’ll be in momentarily,” she replied.

Twenty minutes have now gone by.

Still no sign of her doctor.

She’s getting anxious.

“Can you put me back on the monitor?” she asked the scrub nurse.

“The reason I was told I needed a c-section was because the baby was having a problem,” she explains to the nurse.

“Not to worry,” your baby’s fine, she says flippantly without answering her question directly.

Thirty minutes.

Forty minutes.

Still lying on the table, waiting for her c-section.

Now the husband is getting worried.

“Where’s my wife’s obstetrician?” He demands from the nurse.

“I’ll check,” she says.

Five minutes later, the nurse returns.

“He’s on his way,” she says.

Ten minutes later, the obstetrician blows into the operating room with an assistant by his side.

“Ok, sorry I’m late. Let’s get this baby out,” he says with a smile.

No explanation of where he was.

No explanation about why the delivery wasn’t done earlier.

No discussion about her needing a prompt delivery because the baby was having a problem.

No discussion about why she wasn’t on the fetal monitor while waiting for her delivery.

The anesthesiologist goes to work and makes sure she doesn’t feel a thing.

The husband hears very little.

There’s little talk in the operating room.

Simple commands.

The Ob is calling for instruments.

He’s calling for a hemostat.

He’s calling for a bovie.

He asks for two scalpels, one a few minutes after the first.

He quietly asks for retraction.

He raises his voice at his assistant.

He wants more retraction.

He can’t see where he’s cutting.

He asks the nurse to suction.

He looks at the tube on the wall that is suctioning out whatever the surgeon is holding it to.

It’s bright red liquid.

That doesn’t look right.

That doesn’t look normal.

He hears the obstetrician call for a senior resident.

There’s urgency in his voice.

“Go into the doctor’s lounge and get another attending in here stat!” he says urgently.

The Ob tells the anesthesiologist to hang two units immediately.

The husband happens to glance at his shoes and notices that blood is dripping on the floor from the middle of where his wife’s belly is.

He can’t see what’s going on since there’s a drape under her chin preventing him from seeing the surgery.

“Hey doc,” the husband says… “There’s blood dripping all over the floor. Is this something to be worried about?” the husband says while gripping his wife’s hand gently.

“Nothing to worry about,” says the obstetrician, as he keeps his head down in the surgical field.

Two minutes later, three more obstetricians blow into the operating room, fully gowned and gloved.

The husband hears “What’s going on?”

His wife’s obstetrician replies “She’s bleeding out and I can’t stop it. We’re not even down to baby yet,” he admits to his colleagues.

The husband glances at the clock on the wall.

He calculates in his head that the c-seciton was started twenty three minutes ago and the baby still  has not been born.

“This can’t be good,” he thinks to himself.

Then he notices his wife start to shiver and shake.

He turns to the anesthesiologist sitting two feet away and mentions it to him.

“Not to worry. That’s normal,” he says.

The obstetrician yells out to the anesthesiologist again “Hang another two units now. Fast infusion!”

More blood is being suctioned out of the operative field.

More doctors and nurses come running into the room.

What started out as a sleepy, quiet room, is now bustling with activity and the husband is not pleased.

“Could someone please tell me what the hell is going on?” he blurts out to the entire room.

One of the other doctors who is now assisting the obstetrician says calmly, “Your wife had a complication. There were a couple of blood vessels where they shouldn’t have been and we’re going to stop the bleeding and get you a beautiful healthy baby very shortly.”

The doctors then return back to the surgery.

Fifteen minutes later, another doctor enters the operating room.

He’d been called in by a nurse.

“Ok, what’s the problem here? I was about to head out to the golf course and then I got paged in. Who needs an embolization?” the doctor says loudly.

“She’s bleeding from her iliac artery. I can’t clamp it. There’s too much bleeding. May have to cross-clamp the aorta in order to slow the bleeding,” the obstetrician says.

“Is the baby out yet?” the interventional radiologist asks.

“Not yet. Getting to it,” the obstetrician replies.

It takes another ten minutes to slow the bleeding enough for the interventional radiologist to embolize the bleeding artery. He then turns the surgery over to the obstetrician again who now, finally, delivers the baby.

By this time, another team of doctors have arrived in the c-section room.

There must be twelve doctors and four nurses in there.

This can’t be normal.

As the new team of doctors arrive, the anesthesiologist mutters “The cavalry has arrived,” just loud enough for the husband to hear. It’s a team of neonatologists who have been alerted to the likelihood that the baby is going to have a problem once born. They’re ready for whatever comes up.

The husband finally sees the obstetrician hold his baby up above his wife’s belly as he hands the baby off to a nurse.

The nurse immediately places him on a table in the corner and the four neonatologists begin attending to him.

There’s silence in the room.

Nobody is talking.

The baby isn’t crying.

The husband has a knot in his stomach.

The baby’s skin looked blue.

He looked back at his wife’s head and she had that unspoken look that said “How is the baby?”

He quietly whispered “He’s fine. The doctors are cleaning him up now.”

Two minutes go by.

Still no cry from their newborn baby.

The doctors in the corner are furiously working on the baby.

The husband tries to stand up to get a better view of what they’re doing.

He sees one doctor trying to put a device down the baby’s throat.

He sees a nurse draw blood from his baby’s foot.

He then glances at the operative field, over the curtain.

What he sees makes him sick and lightheaded.

He quickly sits down and begins hyperventilating.

He doesn’t comprehend what he just saw.

He saw his wife’s entire belly open.

He saw her intestines.

He saw lots of blood in the operative field.

He saw all the surgeons cutting and digging in her abdomen.

“What are you doing to her?” he yells out to no one in particular.

“What is going on with my baby?” he yells to the doctors in the corner.

They all glance up for a moment over to where the husband is sitting.

Then they all return back to what they were doing.

The obstetrician tells him “Your wife had so much bleeding that we couldn’t control, we had to remove her uterus otherwise she was going to die. We had to do a hysterectomy to save her life,” he says with certainty.

He doesn’t understand the significance of that comment at that moment.

That comment will come back to haunt him in the future.

“What’s going on with my baby?” he demands to know.

“The baby is having some breathing problems and we needed to put a tube down his throat to help him breathe,” one doctor says.

The husband looks at the clock on the wall.

He again does some mental calculations and realizes his wife has now been in this operating room for almost three hours.

“How much longer?” he asks the surgeons.

“Another hour or two,” one of them says.

“How’s the baby?” he asks.

“We’re going to take him to neonatal intensive care unit, the NICU, where we can monitor him and give him the best care,” he’s told.

Two hours later, the surgeons finish up.

The husband follows his wife and three doctors as she’s wheeled into the recovery room.

From there, she’s wheeled into the ICU.

A half hour later, one of the senior obstetricians finds the husband and motions to talk to him outside.

The husband follows him out.

“I’m Dr. Dopplefart,” he says. “I’m the Chief of Obstetrics and Gynecology here at this hospital. I asked your wife’s obstetrician to join us and he’ll be here in a few minutes…”

Without pausing, he continues…

“Your wife almost died in there,” pointing to the operating room down the hall.

“A major blood vessel was accidentally cut and the obstetrician had a very tough time slowing the bleeding down. The problem was that this was in an area where this artery is not usually found and it was hit before getting down to the uterus where the baby was. The bleeding had to be addressed first before the baby could be delivered.”

“She lost a lot of blood. We had to give her ten units of blood. That’s a lot. We did everything we could to stop the bleeding. We called in a specialist to try and close off that artery. That didn’t work. We cross clamped the largest artery in her body. That didn’t work. Our only option at that point was to remove her uterus…perform a hysterectomy. That worked to stop the bleeding.”

“What does that mean?” the husband asked.

The Chief of Obstetrics said sadly “It means she can no longer have any children. I’m sorry.”

The husband was devastated.

He didn’t know what to say.

“And what about my newborn baby? How is he doing?” the husband asks.

The Chief tells him.

“Not well. It looks like there was a significant lack of oxygen during the delivery. He had seizures once he was in the NICU. He’s on 100% oxygen and we think there’s brain damage. The neonatologists told me that his Apgar scores were 0, 1 and 1.”

“What the hell does that mean?” the husband asks as if it’s Greek.

“It means your baby is very sick,” he tells him.

Just then, his wife’s obstetrician walks down the hall toward both of them.

“I’m so sorry,” he tells the husband.

“I did everything possible to save her uterus. I couldn’t stop the bleeding. The artery involved is a major artery and we gave her a lot of blood to transfuse her since she was losing so much blood during the operation.”

“How will she be after she recuperates?” the husband asks.

“She’ll be fine, but as I’m sure the Chief told you, she won’t be able to have any more children.

“How did this happen? Why did it take so long for you to come into the delivery room to start the c-section? Why didn’t you know that this could happen? What did you do?” the husband begins to wail in the middle of the hospital hallway.

They wait a few moments for the husband to compose himself.

The Chief turns to the husband and asks “What did you mean when you said it took him, pointing to his wife’s obstetrician, so long to come into the delivery room?”

“Dr. Dogoody here, pointing to his wife’s obstetrician, told my wife while she was in labor that the baby was having a problem and would need an immediate cesarean section. He then arranged for my wife to be taken back to the operating room. We then waited in the operating room by ourselves, except for a nurse and then an anesthesiologist for almost an hour before he came into the room with an assistant.”

The Chief turns to the obstetrician and says “Is this true?”
“I don’t know if it was an hour. Maybe 40 or 45 minutes,” he responds.

“That’s not true. I was watching the clock wondering where you were. I asked the nurse three times where you were since you said she needed to be delivered immediately and by the time you walked in, I saw on the clock that it was an hour from the time we entered the operating room until you came in.”

The Chief gave the obstetrician a look that said “I want to talk to you later about that.”

____________________________

While I write part 2 of this story, I invite you to watch the quick video below to learn more about how these medical malpractice cases work in New York...

Your attorney told you that at some point in the near future you'd have to answer questions in his office.
Questions by the attorneys who represent the people you sued in your lawsuit.
Defense lawyers.

This question and answer session is known as a deposition.
Lawyers also call it an examination before trial.
It takes place in our office.

In our conference room to be exact.
But you should know two important things...
There's no judge there and there's no jury there either.

It's just you, your lawyer, the defense lawyers and a court stenographer to record all of the questions you're asked and all of your answers.

You think it's a piece of cake.
You think it's informal because it's being done in your lawyer's office.
You think it's just a dress rehearsal for trial.

The reality is that your pretrial question and answer session is just as important as if you are testifying at trial.
The answers that you give will lock you into what you can say at trial a year later.
If at trial you contradict what you said during your pretrial deposition, the defense lawyers will use that to show the jury that you cannot be trusted.

Your lawyer was planning to have you come into his office in March in order to prepare you for questioning.
Then he was planning to schedule your deposition in early April.
Those dates would comply with the court order on when these depositions had to be completed.

Then came the coronavirus.
Then came the lockdown.
Then came social distancing.

Then all lawyers began working from home.
Law office were shut down.
Face to face depositions were no longer being done.

Nobody wanted to be in the same room.
Not the clients.
Not the attorneys.

Not even the court stenographers.
"Hey, what about doing my deposition by video?" you ask.
Sounds great. Let's do it.

HOLD ON THERE TIGER! Not so fast.

I've done video depositions.
I've done video conference depositions.
There are pros and cons to doing it by video.

Let me share with you a few 'pros' to doing your deposition by video.
Then I'll share with you the BIGGEST drawback to using video to conduct your pretrial question and answer session.
Ready?

REASONS FOR USING VIDEO TO DO YOUR DEPOSITION:

1. Convenience
2. Ability to proceed forward with your question and answer session without being in the same room with eachother.
3. You never have to leave your home.
4. You don't have to fight traffic, find a parking spot and spend all day in an attorney's office. (Convenience)
5. Assuming all the attorneys agree, it will allow you to keep your discovery schedule on track.

DRAWBACKS TO USING VIDEO FOR YOUR DEPOSITION:

1. Technology may not cooperate. You may have glitches in your Wifi. You may have glitches in your video conference platform. Your audio may not be working well. That means that you will not be heard. That's a problem. The court stenographer needs to know EXACTLY what you said. Your attorney needs to know EXACTLY what the question asks to make sure it's a proper question. The opposing lawyer needs to know EXACTLY what your response it in order to ask the next question. If there's a technical glitch anywhere along the way, that would impair one or more of those people to make sure that everything is being done correctly.
2. Your attorney can't kick you under the table when you start going off topic. I say that sarcastically. Attorneys don't kick clients under the table. But there is some truth to it. When doing a video deposition, if you have a question you need to ask your attorney, you can't turn to your lawyer and say "Can I speak to you outside for a moment?" Instead, you'll have to ask for a break and then call your lawyer on his cell phone to ask your question. It's awkward but doable. 
3. If the attorneys have a dispute about a question or a topic, it becomes very difficult to contact the court or court attorney to break a stalemate. That means that whatever dispute arises, the attorneys will have to make their views known so the court reporter can record it and then one lawyer or more will have to formally ask the court to take action on their request. 
4. There are other drawbacks, but rather than go on, let me get right to, in my opinion, the BIGGEST drawback to using video for your deposition:

BIGGEST DRAWBACK

Most video conferencing platforms have the ability to record the video conference. For example, if you use ZOOM to conduct your deposition, other than the privacy issues that have become public knowledge recently, there's another problem. Each participant can record the video conference. At the end, they simply press the button "End recording," and it will ask you whether you want to download the recording.

Think about that.
Your lawsuit is semi-private.
It's semi-public.

In New York, in cases involving accidents, medical malpractice and wrongful death cases, we typically do NOT videotape depositions. There are a few instances where we can, but in 99% of the time, we don't. Nor do we have expert witness depositions in State court, as opposed to Federal court. 

Although some of your lawsuit details are in the public realm such as the names of the people involved in your case and the general type of case you brought, that's often the extent of what the public sees about your case. Nobody sees the questions and answers that you give during your deposition. The transcript of your deposition is not made public. 

The only time the details of your case really fall into the public realm is if your case goes all the way to trial. Then, the courtroom is open to the public. Anyone can walk in, sit down and take in all the testimony and evidence presented.

Let's get back to your video deposition now.
You agree to do your deposition by video.
You want the convenience.

That's understandable.
Keep in mind that your deposition could be recorded by the opposing attorney.
There is the possibility that all of your questions and answers, in video format, could inadvertently be posted online.

It might be an innocent mistake.
It might be intentionally released.
It might be part of a campaign to malign you and your case.

You just don't know.
You don't want your deposition, in any format, posted online.
You don't want it in the public realm.

You don't want your friends or relatives watching it.
You don't want to find yourself on your local news.
You don't want to find your boss or co-workers watching it.

Since most video conferencing platforms permit video recording of your conference, you need to get your attorney to have the opposing attorneys PROMISE that they will not video record your deposition. They have to promise and guarantee that under no circumstance will any recording be permitted to be released anywhere. Not online. Not in the public realm. Nowhere. If they break their agreement, your attorney has to fashion an agreement with the other attorneys about what will happen if they break their promise.

Should you do it?
It's up to you and your attorney.

Have questions about your matter that happened here in New York? If you have NOT yet started a lawsuit and have questions about your matter that happened BEFORE the covid 19 pandemic, then I invite you to pick up the phone and call me at 516-487-8207. You know I answer questions just like yours and welcome your call.

You're at the point where you think your doctor screwed up.
You believe your doctor was careless.
You walked into the hospital just fine but now you're paralyzed.

You complained to your doctor for months and now you've been diagnosed with advanced cancer.
You were told it was a routine surgery, but you experienced every complication under the sun.
You needed three corrective surgeries and you're going to need more.

You get the sense that none of this should have happened.
Your doctor avoids the topic about whether this could have been avoided.
One of your treating doctors whispers in your ear that your injuries were preventable.

You decide it's time to find the best attorney for you and your possible case.
You start calling attorney's offices.
None have called back.

You speak to a few intake people who obtain your basic information.
Nobody has called you back yet.
You begin to suspect that you haven't presented your case very well.

YOU HAVEN'T EXPLAINED YOURSELF WELL

You suspect that you're not explaining your case in a concise way.
You're also unsure what the receptionist or the intake person needs to know.
You're planning to tell your entire story to the first lawyer who calls you back.

Your fears are valid.
You likely have not communicated effectively to the person taking your information.
You probably gave them too much information.
Information that wasn't needed or relevant to what they need to know.

Let me share with you what an attorney needs to know when you call his office.

YOU NEED TO BE CONCISE

This is NOT the time to tell the lawyer your entire story.
In fact, this initial call is just a brief screening call.
This call is only designed to see if he will invite you into his office.
That's it.
It's not designed to determine if you have a valid case yet.
Nor is it designed to confirm the extent of your injuries.

HE NEEDS A HEADLINE

That means you must make your case interesting to the attorney you talk to.
"I walked into the hospital and came out paralyzed."
"I complained to the doctor about my breast lumps for months and now I've been diagnosed with breast cancer in that exact location."
"The surgery was supposed to be routine. I've now been in the hospital for 30 days and had 3 surgeries to correct the problems that happened during surgery."

WHERE DID THIS HAPPEN?

You need to tell him WHERE the wrongdoing happened.
He needs to know what hospital or where was the doctor's office.
Was it a private doctor's office?
Was it in a clinic?
Was it in a municipal hospital?
Where?
Why is that important?
Because the time limits to file a medical malpractice lawsuit are different depending on WHERE this happened.

WHEN DID THIS HAPPEN?

WHEN did the wrongdoing happen?
Your attorney needs to know if your matter is timely.
Since every type of lawsuit in New York has a deadline (known as a statute of limitations), the lawyer needs to know WHEN you believe the carelessness happened.
Did it happen recently?
Was it within the past two and a half years?
Was it within the past ninety days?
If your matter is NOT timely, it is unlikely any attorney will be able to help you.
That's why it's critical for you to reach out to an attorney as soon as you suspect you might have a valid case against your doctor or careless hospital staff.

WHAT WAS DONE WRONG?

WHAT do YOU think was done wrong?
The attorney needs to get a sense of what happened here. 
Do NOT go on with a long-winded story about what happened.
This brief screening call is NOT the time to tell him everything.
Stay focused on the question of what you think your doctor or hospital staff did wrong.
If you go off on tangents and don't listen to the question, the attorney will get frustrated and realize this is what it will be like to work with you for the next two or three years and likely not be interested regardless of what happened to you.
If you're able to verbalize what you think your doctor did wrong, tell him.
Sometimes an injured patient simply doesn't know and that's Ok. 
But tell him your concerns so he has an inkling of what type of case you might have.

WHAT INJURIES DO YOU HAVE?

What INJURIES do you have BECAUSE of what went wrong?
This is extremely important.
The attorney wants to know exactly what long-term or permanent injuries you have as a direct result of what your doctor did wrong.
There are very important reasons for asking the question this way.
The attorney must know what disability you have because of your doctor's wrongdoing.
There must be a direct connection between your injury and what the doctor or hospital staff did wrong.
If your injuries are minor, it will be very difficult to get an experienced attorney interested in your case.
If your injuries are significant, it's likely the attorney will want to meet with you to explore your case further.

HAS ANY DOCTOR CRITICIZED YOUR OTHER DOCTORS?

Has any doctor CONFIRMED YOUR belief that something was done wrong?
Your attorney wants to know if any of your treating doctors believe that there was wrongdoing leading to your injuries.
Has any doctor criticized the care you received from your original doctors?
This is helpful but not critical.
Why? Because in New York, we are REQUIRED to have a medical expert confirm that you have a valid basis for a case. We are required to have a medical expert review your medical records to determine whether you doctor violated the basic standards of medical care. He must also determine if the doctors' wrongdoing was a cause of your injury and whether your injuries are significant and/or permanent.
ONLY if all three elements are present and confirmed by a medical expert are we permitted to file a lawsuit on your behalf.
If only one or two elements are there, but not the third, we cannot proceed with a case for you.

CONCLUSION:

Once you've answered those brief questions, the attorney will then make a decision about whether to invite you into his office to have a detailed conversation about everything that happened to you. At that point, he will then make a decision whether to accept you as a client and begin an investigation into your case.

HAVE QUESTIONS?

Have questions about your matter that happened here in New York?
If you have not yet started a lawsuit and think you have a valid case,
I encourage you to call me at 516-487-8207 or by email: Gerry@Oginski-law.com

WARNING: It is NOT a how-to DIY article.

Nor do I recommend doing this yourself...unless you're an experienced medical malpractice attorney.
Instead, this article is designed to show you exactly what has to happen in order to for you to start a lawsuit.

Before I get into the mechanics of what has to happen, you need to ask yourself WHY you want to sue your doctor.

WHY DO YOU WANT TO SUE YOUR DOCTOR?

The WHY is always important.

Is it because your doctor yelled at you?
It is because his staff was rude?
Is it because someone dropped the ball and didn't do what they were supposed to?

Is it because you went into the hospital without a significant problem and now you can't walk?
Is it because you had surgery and you came out much worse than when you went in?
Is it because your doctor failed to timely diagnose your cancer and now it spread throughout your body?

There are many reasons and motivations for WHY you might want to sue your doctor.

Also, before I get into the mechanics of HOW to bring a lawsuit, I want to touch upon what a lawsuit will do for you and importantly what it WON'T do.

WHAT A LAWSUIT WILL NOT DO FOR YOU

A lawsuit against your doctor will NOT get him to lose his medical license (in most cases).
A lawsuit against your physician will NOT get him banned from practicing medicine in New York (in most cases).
A lawsuit against your once-trusted doctor will not get him thrown out of his medical practice.

Instead, a lawsuit is designed to do one thing and one thing only...

WHAT A LAWSUIT WILL DO FOR YOU

Get you compensation for all the harms, losses and damages you suffered because he was careless.
Compensation means money.
A lawsuit in NY is designed to obtain money for you.
That's it.

A lawsuit is NOT designed to get the doctor to apologize to you for what happened.
It is NOT designed to prevent these matters from happening again, although it can be a deterrent in some cases.
Is it NOT designed to allow you to tell the world what a horrible doctor this guy or girl is.

It's designed to hold the doctor accountable for his actions.
Once the damage has been done, we can't turn back time.
The doctor can't turn back the hands of time and start over again.

There are no do-overs once the injury has occurred.
If you remember the children's nursery rhyme Humpty Dumpty and the phrase "All the Kings horses and all the Kings men tried to put Humpty Dumpty together again," simply reinforces what happens when other doctors try to fix the problem. Most of the time, they're unable to make any significant improvement.

Our system of justice simply allows an injured patient to obtain money as a form of compensation for all their injuries.
There is no retribution against the doctor.
There is no vigilante justice.

An injured patient can't go and physically harm the doctor, otherwise they'll wind up in jail for a long time. That's not how the lawsuit process works.

HOW WILL YOU KNOW IF YOU MIGHT HAVE A CASE?

Ok, now that we know what a lawsuit is designed to do, let me explain how and why you'll get an inkling that maybe you want to sue.

• Your doctor told you the surgery would take at most 40 minutes. Instead, it took six hours to complete your surgery.
• You developed complications from your treatment but your doctor never told you about any possible side effects or complications.
• You're unable to return to work because of your injuries following your treatment and you're stuck at home wondering how you're going to support your family.
• You just delivered your baby and she was whisked away to the neonatal intensive care unit because she wasn't breathing and you don't know why.
• You were just diagnosed with advanced cancer and you specifically remember having an X-ray or a CT scan or an MRI not long ago and being told you were fine.
• You keep asking your doctor why you have these injuries following treatment and he keeps deflecting your questions and moving on to other topics.

There's usually a hint or a suspicion about something that happened. You may not be able to put your finger on it but you will usually suspect that something happened that shouldn't have happened. Maybe a friend or family member whispered in your ear that this shouldn't have happened. Maybe someone suggested that your doctor screwed up. Those suggestions will trigger your curiosity. It will usually sit with you for days, weeks or maybe even months.

One day you're going to ask yourself, "What if my doctor really did screw up and cause me all these injuries? What if my injuries are permanent? How am I going to survive? I have rent to pay. I have a mortgage. I have to put my kids through school. How will I put food on the table?" In all likelihood you won't have answers to those questions.

Those questions will get pushed back as you cope with your recuperation, assuming of course you can recuperate and didn't die as a result of your doctors' carelessness. Then, it would be your surviving family members who have these questions.

I will tell you that no matter which friends or family members you talk to, they will not have the answers to those questions. Now you begin to wonder whether you need an attorney. You begin to think that maybe a lawyer can help you.

HOW DO YOU FIND AN ATTORNEY WHO CAN HELP YOU?

The next question you're going to ask is "How do I figure out which attorney to talk to? There are so many lawyers out there. How do you know who is going to give you the right information?" That prompts you to think about who you know that might know an experienced attorney. Maybe a friend or co-worker used an attorney. Maybe someone in your family knows a good attorney. Then again, maybe they don't.

Let's assume for a moment that you don't know an attorney and don't know anyone who knows an attorney they can recommend. Who do you call?

Now your choices are limitless. Think about every form of marketing you can, from offline methods like TV, radio, magazines, billboards, postcards, mailings to online searches. If you choose to pick an attorney from common advertising methods, how do you pick one lawyer over the other? How can you tell which lawyer is right for you just from a 30 second TV commercial or a 15 second radio ad? Does a billboard you pass on the highway tell you whether they're a better fit for you than the next lawyer you see in another billboard half a mile down the road?

The problem is that there are so many attorneys who all say the same thing.
They all tell you they're experienced.
They all tell you they fight hard.
They all tell you they do everything to protect your rights.

Some will even tell you about their great results.
Some will boast of their great verdicts and settlements.
What you don't see is the fine print that says you cannot rely on their prior results to establish what kind of results they can get for you.

In another article, I'll go into detail about how you can find the best attorney for you and what you should look for when you don't know an attorney and don't know someone who can refer you to an experienced attorney.

Let's jump ahead now to the point where you've realize you need an attorney. You've also made an educated decision about which attorney is right for you. Let's go through now what we do to determine if you can sue your doctor.

WHAT AN ATTORNEY LOOKS FOR WHEN YOU CALL

The Initial Call...

You call the attorney's office and ask to speak to the lawyer. 
You tell the receptionist that you think you have a valid case.
One of two things will happen.

Either you will be sent to an intake person to obtain your information for the attorney to review or you'll be connected to the lawyer. There are pros and cons to each. For now, go ahead and speak to whomever they connect you to.

You need to keep in mind that when you call, you must make your case sound interesting enough for the attorney to want to learn more. It's almost as if you're marketing yourself to the attorney and in a sense you are. You're trying to convince the attorney that he should stop what he's doing, listen to your tale of woe and agree to take on your case to begin a detailed and thorough investigation.

In order to make that happen, you've got to make your case interesting and intriguing to the attorney. 
You've got to get him interested quickly.
Otherwise, he's not going to be willing to investigate your matter and will turn you away to seek out another attorney.

THE INITIAL CALL IS NOT THE TIME TO TELL YOUR WHOLE STORY

One of the key ways to make your case interesting is to stay focused in your initial call.
This is NOT the time to tell your entire story.
This is NOT the time to tell every detail of what happened to you.
This is NOT the time to explain stories about the events leading up to the malpractice.

You need to give the attorney or the intake person a headline or a title.
"My case involves a failure to diagnose cancer that has now spread throughout my entire body."
"I walked into the hospital for a minor surgical procedure and I came out paralyzed."
"My new doctor said I should find a malpractice attorney immediately since he said my first doctor clearly screwed up!"

The headline immediately tells the attorney what your case is about. It tells him why he should be interested in your case. Don't say "I'm telling you I have a million dollar case. You really want to take my case, because if you don't, another attorney will easily grab it up." That will just turn the attorney off and he'll wish you luck as he hangs up the phone.

FOCUS ONLY ON THESE QUESTIONS DURING THE INITIAL CALL

Here are the key questions you MUST keep in mind and need to answer in order to keep an attorney's attention:

1. WHEN DID THE WRONGDOING HAPPEN?
2. WHERE DID THE WRONGDOING HAPPEN?
3. WHAT DO YOU THINK WAS DONE WRONG?
4. WHAT INJURY DID YOU SUFFER BECAUSE OF THE DOCTOR'S WRONGDOING?
5. HAS ANY DOCTOR CONFIRMED YOUR BELIEF THAT SOMETHING WAS DONE WRONG?

WHEN DID THE WRONGDOING HAPPEN?

The attorney needs to immediately identify if your matter is timely.
Every case in NY has a deadline in which to file a lawsuit.
If the time to file your case has expired, it doesn't matter what happened to you, the attorney will not be able to help.

You may not know the exact date or time when the doctor screwed up. 
Maybe it happened over a period of weeks or months.
Tell the attorney that time frame.

Did you know there are different time limits to bring a lawsuit for an adult compared to a child.
There are different time limits if your matter happened in a private hospital compared to a municipal or State owned hospital.
There are different time limits for a baby who suffered injury during labor and delivery than for an adult.

Focus on when the wrongdoing happened.

WHERE DID THE WRONGDOING HAPPEN?

Did this happen in a private doctor's office?
Was it in a municipal hospital?
In a State hospital?

This is critical information that the attorney needs to know right away.
Why?
To help evaluate whether your matter is timely.
There are different time limits depending on whether your case happened in a private office, a municipal hospital or a state hospital.

It also helps to know if the attorney handles cases in the geographic location where your matter happened.
If this happened in Upstate New York and your attorney only practices law in the New York metropolitan area, he's going to have to refer you to a lawyer who practices upstate.

WHAT DO YOU THINK WAS DONE WRONG?

This is important for the attorney to know right away. You may know or at least suspect what was done wrong. If you know, tell the attorney right away.

"I think my doctor screwed up my surgery." 
"I was in a coma for two weeks following my surgery. When I woke up the nurse told me something bad happened..."
"I kept telling my doctor about this lump in my breast and he kept blowing it off. A year later, in that exact location I was diagnosed with breast cancer..."

When the attorney asks you what was done wrong, he needs to get a sense of what kind of case is yours. Is it a failure to diagnose? Is it an improperly performed surgery? Is it a failure to treat? Is it an improper medication you were prescribed? The attorney looks at this question to begin asking himself who did what wrong.

WHO WAS CARELESS?

WHO did this?
Was it your doctor?
Was it a nurse?

Was it a doctor-in-training known as an intern or resident?
Was it a physician's assistant?
What it a nurse's aide?

Once he identifies WHO, he now has to explore WHAT was done wrong.
Don't go off on tangents.
Answer his questions directly. 
If he wants additional information, he'll ask you for it.

WHAT INJURY DID YOU SUFFER BECAUSE OF THE WRONGDOING?

The answer to that question is important.
The attorney needs to know what injuries you received.
Is this a significant injury case or simply minor bruising?

Do you have long-term permanent injuries?
Are your injuries life-altering?
Are they disabling?

If your injuries are minor, it's going to be difficult for you to find an attorney willing to invest their hard earned money and precious time to investigate your case. Why? Because an attorney who decides to take on your matter will invest their own money to determine if you have a valid basis for a case. You don't have to pay anything upfront.

If your injuries are significant, the attorney is more likely to want to investigate your matter.
The lawyer also needs to know how the injuries have affected you on a daily basis.

HAS ANY DOCTOR SUGGESTED THAT SOMETHING WAS DONE WRONG?

There are times when one of your treating doctors tells you that the treatment you had by that 'other' doctor never should have happened. Sometimes, a doctor may come right out and tell you to find a medical malpractice attorney. Other times, a doctor may tell you that the treatment you received was improper and that's why you have all the problems you suffer from now.

There are other doctors who simply say nothing, hoping they won't get involved in any legal proceeding against your first doctor.

The attorney wants to know if anyone has criticized the care you received from the first lawyer.
If someone has, it gives an indication to your lawyer that maybe you have a valid case.
Why?

Because your treating doctor knows your medical condition.
Presumably he's reviewed your prior doctor's records and can comment on them intelligently.
If so, you're already ahead of the game in getting an expert to review and evaluate your case.

ONCE YOU ANSWER THESE QUESTIONS, THE ATTORNEY NEEDS TO DECIDE WHAT TO DO NEXT

Remember, this initial call is just a brief screening call.
The attorney will do one of two things at this point.
Either he will tell you that he can't help you and suggest you contact another attorney immediately, or he'll invite you in to his office to meet with you and gather many more details to decide whether to do a full investigation at that point.

IF THE ATTORNEY AGREES TO MEET YOU, KEEP THIS IN MIND...

Regardless of whether you think you have a case and regardless of whether your attorney thinks you have a valid case, it doesn't matter what either of you think. It's true. In New York we cannot start a lawsuit on your behalf just based on what you think or what your attorney thinks.

This type of case is unlike a car accident case.
It's unlike a trip and fall case.
It's unlike a dog bite case.

In those cases an attorney could literally start your lawsuit the next day and you'd be on your way.

Not true for medical malpractice cases.

Instead, if your attorney believes you have a valid case, he must first obtain all of your medical records.
He has to read all of your medical records.
Then, he has to hire a medical expert to read and review all your medical records.

A qualified medical expert must confirm these three things in order for you to bring a lawsuit:

1. Your doctor violated the basic standards of medical care,
2. His wrongdoing was a cause of your injury, and
3. Your injuries are significant and/or permanent

Only after a medical expert has confirmed EACH OF THOSE THREE THINGS, are we permitted to file a lawsuit on your behalf. If the expert finds only one or two of those things in your favor, we are prohibited from filing suit. We must have all three items present in your case in order to go forward.

That's it for today explaining how to sue your doctor for malpractice here in NY.

Have questions about your matter?

If your care and treatment happened here in New York and you have not yet started a lawsuit, then I invite you to pick up the phone and call. I answer questions like yours every day and would love to talk with you.

You can reach me at 516-487-8207 or by email: Gerry@Oginski-law.com

Stay-at-home and work-at-home for all non-essential personnel have now become the norm.
That means our kids are home.
Our spouses are home.

Everyone's home and presumably working (or not) from home.
Kids are online taking classes (assuming their schools are set up for this).
The roads are practically empty.
If you've been in a restaurant to pick up food, it's eerie not seeing anyone in there.

What does all this mean if you've been injured by a doctor or hospital staff and your time to file a lawsuit is quickly approaching?

Well, you should know that the courts in New York have also shut down.
All non-essential personnel have left the building.
They are not working from home.

If you believe that your doctor or hospital staff was careless and caused you harm, you have a limited time in which to start a lawsuit here in NY. The time limits differ for adults and children. They differ if you plan on suing a municipal hospital compared to a private hospital. They differ if it involves malpractice arising from a botched delivery of your child. There are many rules and just as many exceptions to those rules.

However, as of yesterday, March 20, 2020, the Governor of the State of New York, Andrew Cuomo has just signed an executive order that basically extends the time in which an injured patient or accident victim can file their lawsuit. BUT YOU SHOULD KNOW, IT'S ONLY FOR A SMALL WINDOW OF TIME. YOU MAY ONLY GET AN ADDITIONAL 29 DAYS IN WHICH TO FILE.

Word of WARNING:

YOU CANNOT RELY ON ANYTHING IN THIS ARTICLE TO GUIDE YOU ON WHEN YOU BELIEVE YOU SHOULD FILE YOUR LAWSUIT. Why not? Because the time limits change from time to time. By the time you read this, the time limit may have changed. That means the ONLY way to know for sure whether your matter is still timely is to reach out and call. Then we can tell you whether your matter is timely. You can reach me at 516-487-8207 or by email: gerry@oginski-law.com

In the meantime, stay home and be safe and remember...don't let that time limit expire!

"Will you take $150,000? the defense attorney asks with anticipation.
"No, I won't."

"Will you take $200,000? the defense lawyer asks, getting more and more frustrated.
"No, I won't."

What just happened?

During settlement discussions, the opposing lawyer offered you money.
He didn't ask how much we wanted.
He didn't ask how much we'd take to settle your case.

Instead, he made an offer, believing that this would be sufficient to resolve your case.
He was mistaken.
He came in with a low ball offer.

He had to know we wouldn't take it.
By some chance he was hoping we'd take it.
Alternatively, he was hoping that we'd begin to negotiate from that low ball starting point and work our way upward toward a number that he and his insurance company thought was appropriate.

Wouldn't it be so much easier to say "Listen, we think this case has a value of $500,000. That's the only offer that will be made on this case. If you agree, then the case is over and neither of us have to go to trial. If you don't agree, we'll let a jury decide how much this case is really worth, assuming of course the jury finds my client responsible for your client's injuries."

That would be the simplest way to negotiate a case. 

That way there's no back and forth.
There's no negotiating.
It's simply "Here it is. If you want it, great. If not, lets go to trial."

Provided the offer is a good one, then it may be something to seriously consider.
On the other hand, if the offer is crap, then there's no sense negotiating, knowing full well that the defense will not offer up any additional money.

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

The power of saying "NO" during negotiations.
First, in order to use this strategy, you can't give the defense a specific number that you believe is appropriate to settle.
If you do, this strategy will not work.

"Hey counselor, how much do you need to settle this case?" the defense lawyer asks me.
"I need $1 million dollars," I respond.
"Ok, I have $100,000. Will you take that amount?" the defense lawyer asks condescendingly.

"I told you I need $1 million. You're insulting me with your low ball offer. Come back with a million and this case is settled."
"Ok, I spoke to my principals. They've agreed to offer $200,000. Will you take that?" he asks.
"What part of my $1 million dollar demand did you not understand?" 

"Are you willing to negotiate at all?" the opposing lawyer asks me.
"Yes, I'm willing to accept $1 million for your client's negligence causing my client's injuries. I could have asked for $2 million and then worked my way down to $1 million, but I thought you'd understand my intent when I said I need $1 million to settle."

On the other hand, if you have a case where you can show that the doctor or driver was careless and caused you harm, it's possible the defense will approach us first to try and settle.

"Hey Oginski, are you willing to try and settle this case before we get to trial?" the defense lawyer asks.
"Sure. What do you have?" I ask.
"I have $100,000," he responds.
"No. That won't work. Have a good day," I say.

A week later I get a call from the same attorney.
"Hey Oginski, will you take $200,000?"
"Nope. You call me back when you have a real offer," I say.

A few days later, he calls again.
"Hey Oginski, will you take $450,000?"
"No. I told you to only call me with a real offer. Take care now," I respond.

Notice I haven't made any counteroffer here.
Instead, I've only said "NO" repeatedly.
In each call, I've made the assumption that the defense truly wants to settle the case and by their sequential phone calls to me, have a real desire to resolve the case prior to trial. That will only work if we can show that we are slightly more likely right than wrong that what we're claiming is true.

Nor have I told the defense attorney my bottom line number that I will accept in order to settle your case.
I will tell you that after the first or second call, the defense lawyer is likely to ask, more out of frustration than any strategy, "Well, what exactly are you looking for so I can go back and tell my insurance company?"

The answer to that question will set the framework within which your case may be negotiated.
It depends on whether I trust my opponent.
It depends on whether I've worked with him before.

It depends on whether this insurance company is reputable and lives up to their word.
It depends on a gut feeling.
It depends on what similar cases have settled for.

It depends on what a verdict in this county is likely to generate.
It depends on what an appeals court will likely do with an excessively large verdict.
On the other hand, I may simply say "$450,000 won't do it. Make me another offer," and hope they continue to increase their offer until we reach a point where it is acceptable.

Likewise, there will come a point where the defense will turn around and say "Listen, this is our last and final offer. If this works for you, great, take it and we're done. If you don't take it, we'll go to trial."

I wish they'd simply short-circuit this process and go straight to this last option. "Here's what we have. No more. If you want more, you'll have to get it from a jury and then the appellate court." Doing that would make negotiations so much simpler.

Is saying "NO" the right settlement strategy for you and your case?
The answer will depend on many factors I've discussed here as well as many factors that I didn't even have time to touch upon.

To learn more about settlement strategies in medical malpractice and accident cases, I invite you to watch the quick video below...

Have questions about your matter that happened here in New York? If you're THINKING of starting a case, but haven't done so yet and need answers to your legal questions, then I invite you to call me at 516-487-8207 or by email: gerry@oginski-law.com

Actually, I heard it from a new potential client.
He called me the other day.
"Mr. Oginski, I want you to take over my case," he said to me.

"Why?" I asked.

"Because my lawyer is hiding from me!" he exclaimed.
"What do you mean 'he's hiding from you'?" I asked, shocked that an attorney might do this.
"I call and he doesn't call me back. I email him and he doesn't have the decency to respond. I send him written letters and he ignores them," he tells me.

"Why don't you make an appointment to see him and have this conversation face-to-face," I ask as if this is something he never thought of before.

"Ha!" he blurts out. I can't get anyone on the phone. It always goes to voicemail. It's as if he disappeared. I have no idea what he's doing on my case. I have no idea what the status of my case is. I really think he is afraid to talk to me. I think he runs every time I try to communicate with him. It's so bizzare!" he tells me.

As I'm listening to this tale, it DOES sound like the attorney is running from this client. Why? I have no idea. It shouldn't happen. The attorney should communicate regularly and frequently with his client. That makes the client happy and reminds them that you are working on their case and know what's going on. If the attorney ignores you, there's a problem. It could be an innocent problem or it could involve something deeper and mean a much more significant problem.

I check the court system for his case. It said discovery was in progress. I asked him if he'd had his deposition yet. He said "No, what's that?" That's a problem. It tells me that the attorney hasn't even conveyed to his client what the legal process involved.

The caller told me that this lawyer stalked him for weeks, begging him to sign up with him. He called a phone number on a highway billboard and they forwarded his number to some local law firm. This lawyer, after hearing a few basic facts about his accident case, was willing to drop everything and personally drive out to him, an hour away to sign him up. The caller wasn't sure he was the right attorney for him. The lawyer called him six more times over the next week. He sent him emails. He sent him big packets of papers in the mail. He sent him brochures, pamphlets about his firm and his 'successes', all designed to convince this guy to sign up with him.

Finally, the injured caller relented and agreed to sign the documents. After that, it was as if the lawyer was a ghost. No status updates. No calls. No emails. Nothing.

I told the caller to leave a message with his attorney. "If I don't hear from you by the end of the day, I'm taking my case elsewhere."

Needless to say, the attorney never called. The injured victims called me back to tell me that his lawyer never responded. to his voicemail. I told him he needed to find another attorney immediately. Unfortunately I was not able to help him since I do not get involved in cases that have already been started.

How bizzare is it that this lawyer virtually ran away from the client?

But here's a little secret I want to share with you...
I think I know what happened. This lawyer was getting new leads from an advertising service. When the lawyer realized that this was a good case, he eagerly agreed to drop everything to sign the client up. Then, either he had too much work to do and dropped the ball on his case or he was neglecting his clients. Either way, the repercussions are severe in loss of client trust and ultimately, one of his clients will report his neglect to the grievance committee. That will force him to explain what he's been doing.

To learn what it means if the defense only wants to offer you nuisance value on your case, I invite you to watch the quick video below...

That's the answer.
The end.

Well, not exactly.
Let me start at the beginning before we get to the end.
You sued your doctor for causing you harm.

You brought a medical malpractice lawsuit claiming that he violated the basic standards of medical care.
Your doctor denies all of your allegations.
What a surprise.

During the course of your lawsuit, the attorney who represents the doctor you sued will have a chance to question you.
This is known as a deposition.
It's also known as a pretrial question and answer session that lawyers call an examination before trial.

The answers that you give carry the same exact weight as if you are testifying at trial in court.
The only difference is that you're not in court.
You're in your attorney's office.

His conference room to be exact.
And there's no judge there.
And there's no jury there.

There's only a court stenographer (we call them court reporters) to record all of the questions you're asked and all of your answers.

During your questioning by the defense lawyer, he asks you a question that I feel is inappropriate.
I yell out "OBJECTION!"
You look over at me, thankful that I'm there to guide you during this stressful time and are pleased that I've objected to such a rude question.

But a moment later, I tell you to go ahead and answer the question.
The look on your face reveals your confusion.
You don't understand.

I just objected to an inappropriate question.
I said so myself that it was inappropriate.
The exact wording was "That's irrelevant!"

Then I told you to answer the question.
Say what??
Yes, you read that correctly.

I told you to answer that inappropriate question.

Now why would I do that?
Simple.
As I mentioned at the beginning of this article, because I have to.

Let me explain...

When you bring a lawsuit seeking money as a form of compensation for your injuries, the defense attorney has a chance to learn all about what happened. They have a chance to ask you all sorts of questions even if you believe it's unrelated to the claims we're making or the defenses the doctor has raised about why he's not responsible for your injuries.

This is known as the 'discovery' phase of your case.
Each side gets to 'discover' evidence and testimony about what happened in your matter.
Not all of it will be useful.

Not all of it will be permitted at trial.
But since this is 'discovery' the defense is given wide latitude to ask questions that don't have a direct bearing on your claims. 
They can ask about your past medical history.

They can ask about your family history.
They can ask about your earnings history (assuming you've brought a claim for lost earnings).
They can ask about the medications you take.

They can ask where you lived before.
They can ask who you live with.
They can probe into your sex life (assuming you've made a claim that your injuries affect your relationship with your spouse).

There's a lot they can ask you about that you or I may think are inappropriate.

There are only two or three instances where I can legally tell you NOT to answer the question (I'll save those details for another article.) Otherwise, you'll have to answer the question.

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

We were just about to start my client's deposition.
My client sued his doctor.
For medical malpractice.

We claim his doctor was careless and caused him harm.
Permanent harm.
His doctor denied all of our allegations.

Now, during the 'discovery' phase of his lawsuit, the attorney who represented the doctor we sued was going to question my client. In my office. In my conference room. There would be no judge there. There's no jury there. Just me, my client, the defense lawyer and a court stenographer. That's it.

This question and answer session is known as a deposition.
It's pretrial testimony.
Lawyers also call it an examination before trial.

Even though there's no judge or jury in the room, you should know that the answers you give during this deposition carry THE SAME EXACT WEIGHT as if you are testifying at trial in court.

When I walked into my conference room with my client, the defense lawyer was already there.
So was the court stenographer.
I knew the defense attorney.

We'd worked as opponents on quite a number of cases together over the course of our careers.
We'd gotten into major verbal brawls during other cases.
She screamed at me. I screamed at her.

Yet we hadn't seen each other in months on a case and now when I walked in, I was surprised to see her.
I said hello.
She said hello.

I said "Nice to see you."
She said the same.
I introduced her to my client and then we got to work.

Two hours later, when we took a quick break, my client told me he was furious.
He was angry.
I asked him what's going on.

He couldn't believe I was pleasant and polite to my opponent!

He thought we were working together to conspire against him and his case.
He thought I had to be a nasty and obnoxious son-of-a-bitch to her.
He fully expected me to be an angry and aggressive pit-bull and to make sure I was nasty to her, in front of him.

I said "What the heck are you talking about?"
He told me about his expectations of how I'd behave and react to my opponent.
He told me that after seeing so many TV and courtroom dramas in the movies that that is how I would behave.

I stopped him in his tracks.
"WHOA there tiger!" I said.
Those expectations are so wrong.

That's not what goes on in real cases in real life.
Maybe some attorneys are jerks and obnoxious bastards.
But I'm not one of them.

There's a time and place to be aggressive and righteous and demanding and your deposition is not that time.
Maybe during trial there's a time for that.
Maybe during settlement negotiations there's a time for that.

But during pretrial questioning where I exchange pleasantries with my opponent before we even get started? Sorry, but your expectation is sorely misplaced.

Watch the quick video below to learn what else I told him...

If a total stranger walked up to you and asked "Hey Mr. Jones, are you prejudiced?" how would you answer?
I'll tell you how you'd answer.
You'd be reluctant to talk to this stranger.

You'd be reluctant to open up and discuss your true feelings with a total stranger.
Who is this guy to ask you about your personal feelings?
There's no way in hell you'd start telling a perfect stranger your deep inner-most thoughts.

"What if the stranger disagrees with me?" you might ask.
"What if this stranger is targeting me and looking for people who think x, y or z?" is another question that might be going through your mind.
"I'm not getting into a discussion about this...it's private and it's none of his business!" you think to yourself.

All of those are valid responses to a stranger asking you this seemingly bizarre question.

Yet this type of question is asked every day by attorneys to jurors who show up to the court house for jury duty.
Honestly, it's a terrible question.
It's terrible for another reason.

A deep seated reason.
The fact is that nobody wants to admit they're prejudiced.
At least not in public.

Nobody wants to say what many are thinking for fear of what others will think of them.
"He's prejudiced!"
"He's biased!"
Those labels can be embarrassing, especially when made in front of a group of strangers.

It takes a really strong-minded person who simply doesn't care what anyone thinks to stand up in a room of 30 strangers and say "Damn right I'm prejudiced! I don't think those types of people should have any rights to blah, blah, blah..." the opinionated juror declares while the entire room has their collective jaws drop to the floor.

The plain fact is that nobody wants to admit they're prejudiced.

Nor does anyone want to admit that they're in favor of one side or the other.
That's really what bias means.
They favor one side because they have an affinity for one or the other.

It may be rational.
It may seem logical.
But bias means you favor one side before you've heard or seen any evidence.

That gives one side an advantage.

Getting back to jury selection and the types of questions I want to ask jurors...

As we're getting ready to start a medical malpractice trial, we are asked to select six people from the community who tell us they can be fair and impartial.

The sad reality is that not everyone tells the truth. (Gasp! Can you believe I uttered those sacred words?)
Although witnesses get up on the witness stand, put their hand on the bible to tell the truth, do you think there are times when a witness simply lies? Unfortunately, yes. It's our job to show a witness is being less than truthful. 

But in jury selection, when we're trying to pick those jurors who are right to sit on your case, asking them if they're prejudiced is simply an awful question. Everyone will always say "No, I'm not." Great, you got the answer you're looking for, now ask another question counselor.

There are different ways to elicit a response that is more indirect and less offensive.
But the point is it is critically important to discuss prejudice and bias during jury selection.
Let's say a juror is married to a doctor.

She may feel that all injured patients have frivolous cases when they sue a doctor.
Maybe her husband the doctor has been sued before.
Being married to a doctor may cause her to lean in favor of the doctor you're suing in your case.

That would be very important to know before deciding if she is the right juror for your type of case.

I might ask "Mrs. Jones, are you a little closer to the people who feel that doctors should be put on a pedestal where a doctor can do no wrong?" "Or are you a little closer to the people who feel that everyone should be held accountable for their actions regardless of their job or profession?" Then I'd follow up with "Tell me why..."

To learn more about prejudice during jury selection I invite you to watch the quick video below...

No communication from your lawyer in months!

What's going on?
Did he forget about you?
Is he too busy with other matters?

Is he ignoring me?
Is my case not worth enough to him?
What's the deal? 

Why haven't you heard from your attorney in months?

There may be a few different reasons why there's been radio silence from your lawyer's office and it may NOT be what you think. Let me share a few of those reasons with you...

Reason Number 1: He's Still Investigating Your Case

You went to an attorney to see if you have a valid medical malpractice case.
Your initial meeting went well.
The attorney expressed great interest in your case.

You signed up with him.
He told you he'd do a detailed and thorough investigation.
Then he said he'd get back to you with the results.

You haven't heard from him in months.
Is he investigating or not?
Is he getting your records or not?

What the heck is he doing?

What you are experiencing is the classic "In Limbo" time where you don't yet know if the attorney will accept your case.
In order to determine if you have a case, your lawyer has to do many things. Things that go on behind the scenes. Things that don't involve you at the moment. The problem is that most medical malpractice attorneys in New York, don't have a system in place that will tell you what's going on behind the scenes WHILE they are investigating your case.

The attorney has sent requests for your medical records. That can take weeks or even months. Some doctors or hospitals refuse to hand over the records voluntarily. If that's the case, the attorney might have to start a case on your behalf simply to have the court order the doctor or the hospital to turn over your records. That can take time to accomplish.

Once all your records have been obtained, then your attorney must review those records himself. Every single page of every record. This is the only way he'll get a good sense of what happened and importantly, it will allow him to have an intelligent conversation with the medical expert he hires to review your case.

Then, he actually has to hire a qualified medical expert to review all your records. All your records must be copied or scanned and sent to your expert for review. The expert must evaluate all your medical records to determine if your doctor violated the basic standards of good medical care. He must also determine if that wrongdoing caused or contributed to your injuries. He then must determine if your injuries are significant and/or permanent.

Only if the medical expert confirms you have a valid case can you expect to hear back from your attorney giving you the thumbs up that he can now start a case on your behalf.

The problem is that most attorneys don't let you know what's happening along the way. There's a clear lack of communication about what's going on behind the scenes. I can pretty much assure you that your attorney has NOT forgotten about you and your case. Most likely he simply failed to communicate with you regarding each step taking place during the investigation phase.

Reason #2: Your Attorney Is Way Too Busy

This reason is troubling.
It tells me that your attorney is taking on too many cases.
More than he can handle.

It means that he does not have the staff necessary to do a timely, thorough and detailed investigation. 
It also tells me that he doesn't have the time or staff necessary to keep you up to date on what's happening on your case.
This does not bode well for you or your case.

Signs of this happening might be that repeated phone calls to your attorney's office are not returned.
Emails to your lawyer's personal email account are ignored.
You try to set up an in-office appointment to have a face-to-face meeting and your lawyer never is willing to schedule an appointment.

These are all troubling signs that might have simple explanations.
But overall tend to indicate a deeper problem.

Reason #3: Your Attorney Has No System in Place to Communicate With You Regularly

This is the most benign reason you haven't heard from your attorney in months.
Your attorney is really good at what he does.
He's well known and has a good staff.

He knows what's going on with your case every time you call.
He doesn't need to look on the computer to see what happened on your case.
The problem is he doesn't feel it's critical to keep you in the loop on everything that happens on your case.

He's content to speak to you every six months to a year, or if you happen to call asking what's going on with your case.

He has no system in place to communicate with you regularly.
He has no newsletter sent to you each month.
He doesn't send letters out to his clients each month.

He doesn't send emails to update you on what's happening.
It takes too much time and too much effort on his part.
It would take too many resources to keep you updated on a regular basis, so he simply doesn't.

To me, that's simply being lazy.
It doesn't mean he's not a good attorney.
Rather, he just doesn't feel the need or see the value in creating a system to keep you updated on your case on a regular basis.

As for me?
I consider it a personal requirement to keep my clients updated on a monthly basis.
I don't care what other attorneys do or don't do regarding how and when they communicate with their clients.

I know many lawyers in New York (especially those who handle personal injury cases and medical malpractice cases) don't have a communication system set up to let you know what's going on with your case each month. I do.

In fact, I find this is one of THE MOST important ways to let you know what's happening on your case.
I don't want you calling every six months saying "What the hell is going on with my case? I haven't heard from you in half a year? This is ridiculous!"
To me, it's unfortunate a client would ever have to do that.

Instead, I am proactive.
I proactively send you a letter, email or phone call each month.
Each month I update you on what's going on with your case.

That happens even if nothing is going on since we last communicated.
This way you know I haven't forgotten about you.
This way you know if there are any changes going on.

This way you're kept in the loop, especially about things that are going on behind the scenes on your case.
I have found, after being in practice for more than 30 years, that keeping you apprised of what's happening (or not happening) on your case each month, makes for a happy client. It makes for an informed client. It reassures you that your case is important to me and that I value you and your case.

Want to learn more about why you haven't heard from your lawyer in months? If so, I invite you to watch the quick video below...

It was taken moments after the accident.
By a bystander.
It shows the position of the cars immediately after the accident.

It shows the horrible injuries caused by this careless driver.
It's gory.
It's accurate.

It's clear as day.
This bystander deserves an award for being in the right place at the right time.
This photograph has captured the immediate aftereffects of this traumatic accident.

The jury needs to see this.
Words alone do not describe this accident scene.
There's no video of the accident.

There's no video of EMS on scene.
There's no video of the police on scene.
But there is this single photograph.

You sue the driver of the car who hit you.
Seeking money as a form of compensation.
For all the harms, losses and damages you suffered.

The other driver crossed over the double yellow line.
He hit you head on.
This accident was preventable.

This accident never should have happened.
It was during a sunny day.
The moron who hit you wasn't paying attention.

He was looking down at his cell phone.
He was in the middle of texting someone.
Then he dropped his phone on the floor.

As he reached down to look for it, he pulled the wheel.
His eyes were focused on the floor of his car.
Not on the road.

In a fraction of a second his car crossed the double yellow line.
He was traveling at 45 mph.
Your car was also traveling at 45 mph.

In opposite directions.

The impact was horrific.
The noise alone was shattering.
The airbag deployed immediately.

It exploded right in your face.
Your head was jerked back into the headrest.
Your face was hit with shrapnel from the exploding airbag.

That photo shows the airbag, deflated, sitting on you.
That photo shows blood.
That photo shows where the cars ended up after the accident.

It's an important photograph.
One glance at that photo and you'll know how this accident happened.
One look at this picture and you'll see where the accident happened.

Our investigator found the bystander who left her name and number with the police officer.
She revealed she took this photo.
She was nearby.

Her apartment was on the third floor and had a perfect view of this location.
She voluntarily gave our investigator a copy of this photograph.
During the lawsuit, I gave a copy of this photo to the defense lawyer.

He was entitled to know and see any photographs I had obtained about this accident.
So I sent it to him.
I told him who took the photo.

I gave him the name and address of the woman who took the photo.
I explained how our investigator tracked this woman down.
I explained how we learned her name; from the police report.

If this case went to trial, I told him I intended to use this photograph at trial.
He didn't have any objection.
I knew he wouldn't.

I had exchanged all the information I had about the photograph.
During your lawsuit the defense lawyer had a chance to question you during a question and answer session known as a deposition. 
He spent a few hours asking you lots of questions about what happened and what injuries you suffered.

He then pulled out this photograph.
He asked you questions about what was contained in this photograph.
You answered as best you could.

The opposing attorney asked how your lawyer came into possession of this photograph.
You didn't know, but your attorney did.
Everything in the photograph was accurate.

It showed how things looked seconds after the accident happened.

The defense refused to accept responsibility for your accident.
They refused to offer a dime.
That meant your case was going to trial.

You were going to trial to determine liability.
To determine if the driver you sued was careless.
To determine if he violated the rules of the road.

In New York, in these car accident cases, instead of trying liability and damages together, we try liability first.
That means the jury will only determine if the other driver was careless and caused harm.
If the answer is no, then there's no need for a jury to sit there to evaluate your injuries.

Your case is over if the jury says 'No'.
In that case, you'd get nothing.
If the jury says 'Yes', then your trial will move onto the damages phase.

That part of the trial will be for them to determine how much money you are to receive for your injuries.

Your case finally gets to trial.
Six members of the community are listening to the evidence and testimony.
Their goal is to determine whether you are slightly more likely right than wrong.

They don't have to sit there for days or weeks making absolutely sure that what you're saying is right.
They only have to decide that you are slightly more right than wrong that what you are saying is true.
You now get up to testify.

Your lawyer asks you all about how this incident happened.
He has you describe in vivid detail the events leading up to that fateful moment.
He walks you through, moment by moment, what happened until that fateful impact.

Then, after having you describe in many word pictures what occurred, he pulls out the photograph.
The one we talked about earlier.
The one that his investigator tracked down.

This is the same photo we provided to the defense attorney.
The same photo you were shown during your deposition.
The same photo that the defense lawyer had in his file for a year now.

The defense knew I'd be offering this photograph into evidence.
He knew I'd use this photo if your case went to trial.
He didn't have any objection.

"Mr. Jones, I'm showing you a photograph and want you to look at it." I say.
"Does that photograph show where your accident took place?"
"Yes."
"Does that photo show the weather conditions at the time of your accident?"
"Yes."
"Do you know who took that photograph?"
"I learned later it was a bystander named Jane," you say.
"Does that photograph accurately depict the position of your car immediately after the impact?"
"Yes."
"Does that picture accurately show the airbag deployed?"
"Yes."
"Does this photo show the condition of your face after the accident?"
"Yes."

"Your honor, I offer this photograph into evidence," I say to the judge.
The judge looks over to the defense lawyer and asks "Counselor, do you have any objection to this photograph coming into evidence?"
"No Judge, I do not," the attorney replies.

I next expect the Judge to say "Fine. Mark the photograph in evidence as Plaintiff's Exhibit #1. You may show it to the jury now."

Instead, I hear this...
"I'm denying your request counselor. This photograph is NOT being admitted into evidence," the Judge says.
"What? What did you say Judge? You're NOT admitting this photo into evidence?" I ask with a hint of incredulity.

"Judge, there's no objection from my opponent! I laid a perfect foundation for this photograph. My client has authenticated the photo. The jury needs to see this photograph. It's the only one showing the accident scene," I argue.

The judge isn't having any of it.
"Denied. That photograph is NOT coming into evidence," the Judge says with finality.
"But why not?" I demand to know.

The judge gives some cockamamie answer that makes no sense.
"Judge, I ask you to reconsider," I plead.
"Denied."

"I ask you to consider an offer of proof outside the presence of the jury," I beg.
"Denied."
"Judge, the defense has no objection to this photograph going into evidence. So what's the problem? Why would you prevent me from getting this photo into evidence?"
"I said denied counselor, move on," the Judge says.

Can he do this?
Can the judge keep this photograph from the jury even though my opponent and I agree it should come into evidence?
The answer is yes he could.

It doesn't mean it's the right decision, but since the Judge controls everything that happens in the courtroom, he controls what comes into evidence.

If the judge makes the wrong decision and I ultimately lose the case, I can appeal on that precise issue.
It's highly unusual for a judge to keep out a photograph especially if both attorneys agree it should come in.
Especially when this photograph accurately shows the scene immediately afterward.

There are instances where the photos are too gory and might inflame the jury.
In that instance the judge might decide that putting those photos in front of the jury will get them angry and riled up.
Maybe it will make them too queasy because of how gory they are.

But that's not the case in this scenario I've been talking about.
Instead, both sides agree this photo should come into evidence.
The judge refuses.

He's likely wrong.
In all likelihood, I'll have to appeal.
I believe he'll be reversed on appeal.

To learn more about what happens if both sides agree to put this photograph into evidence, I invite you to watch the quick video below...

Your doctor denies all your allegations.
Throughout your lawsuit, the defense refuses to accept responsibility for your injuries.
They refuse to acknowledge they did anything wrong.

"We'll see you at trial," they say.

Three years after you start your lawsuit, your case FINALLY comes up for trial.
Your attorney has spent months preparing for your trial.
He has spent hundreds of thousands of dollars prosecuting your case during these three years.

He has hired multiple medical experts.
He has prepared these experts to get them ready for trial.
He has prepared you for trial as well.

FINALLY! Your trial starts.
Here in New York.
In State court.

It's an emotional roller coaster for you.
There are times when you are on a high and everything is going your way.
There are other times when the defense attorney is cross examining one of your witnesses and it's going badly for your case.

It's nauseating.
You feel the tension in your gut.
You can cut it with a knife.

Every time your attorney puts a witness on the stand to testify, it feels as if the jury likes what they have to say.
Then, when the opposing lawyer gets up to cross examine that witness, something terrible comes out and the jury seems to be shaking their heads when they hear it.
You don't know what to believe anymore.

You thought your case was so clear cut.
You thought that your doctor was careless and caused you harm.
You thought that your medical expert confirmed all that.

That's why you were allowed to go forward with your lawsuit.
So how is it that you're now in the middle of your trial and it feels as if your case is falling apart?
I'll tell you how.

It's because you never know what will happen at trial.
You think you have the best case in the world and your expert falls apart on cross examination.
You may think you have the most credible witnesses and it turns out one of them has a dark secret that's just been revealed to the jury which destroys his credibility.

You think your money expert, known as an economist, comes from a great university.
Turns out he forged his resume and work history and now all his testimony on your case is thrown into question.
You thought you had a good case!

You do, but showing that you are slightly more likely right than wrong is not always straightforward.

So let's get back to the title of this article...

Can the judge force the attorneys to take a verdict instead of settle your case midway during your trial?
The answer should be NO.
But let's explore how this might happen.
Let's pick up in the middle of trial.

Your attorney realizes that your case is unraveling.
The defense attorney realizes that his witnesses are no better.
They agree now is the time to start negotiating.

The defense wants to limit their risk.
They are afraid that if the jury is asked to make a decision about whether the doctor violated the standard of care, they're going to say "YES." 
They're also worried that the jury is going to come back and say that his negligence was a cause of your injury.

Then, the jury will have to decide how much money to give you to compensate you for your injuries.
For your pain and the suffering you endured.
For your disability and the permanent problems you'll have into the future.

The only way the defense can minimize the risk that they'll get hit for a large verdict is to try and settle your case for an amount they consider to be appropriate and significantly less than they think a jury will come back with.

Your attorney on the other hand realizes he has risks too.
There's the chance a jury will decide your doctor was NOT careless.
In that case, you get NOTHING.

Even if the jury decides that your doctor violated the standard of good medical care, there is the chance they will find that his wrongdoing did NOT cause your injury.
In that case, you get NOTHING.

If however the jury does find that your doctor was negligent AND that his carelessness caused you harm, there is the possibility that the jury will give you very little to compensate you for all the harms, losses and damages you suffered.
Your attorney realizes that it's time to start negotiating toward a settlement.

During a break in the middle of your trial, both attorneys start to negotiate.
After a little while, a substantial settlement offer is made.
Your attorney tells you it's a great offer, all things considered.

Your lawyer tells you that your case is going down the drain.
If you don't accept this offer, you'll likely get nothing or very little.
You agree with his assessment.

You give your lawyer authority to settle your case and end this fiasco.
Your lawyer speaks to the defense attorney and tells him we agree to the settlement offer.
Now, both lawyers ask to speak to the judge to let him know they've settled your case.

The attorneys are brought into the judge's private chambers.
This is his private office within the court house.
"Yes? What is it?" the judge asks with curiosity.

"Judge, we just want to let you know during this break in testimony, we've agreed to settle this case," your attorney proudly tells the judge.
"We'd like to put the plaintiff, the injured patient, on the witness stand to ask her some questions so we can put this settlement on the record," your attorney continues.

The judge frowns.
Then he gets angry.

"Wait a second...you want me to agree to this settlement? We've now spent two entire weeks on trial. You spent three days picking a jury consisting of six men and women from the community to give up their lives and their jobs so they can do their job and evaluate your case. You told them they had a job to do. To decide whether you, representing the injured patient, was slightly more likely right than wrong. You made us sit and listen to testimony, experts and look at evidence. You put us through the highs and lows of direct examination and cross examination," the judge is saying at a volume that's only getting louder.

"You took up two weeks of MY time, you've use the courts' resources trying this case, taking up my law secretary's time and my court officer's time, and now you're coming in here telling me you want to settle this case NOW???" the judge screams. 

"There's no chance I'm letting either of you settle this case now. You've piqued my interest in what happened. I WANT TO KNOW HOW THIS TURNS OUT! I want to see what the jury will do. I want you to finish this case. You're both going to continue this trial and take a verdict!" the judge yells. "I want the jury to see this through. I want to give them the satisfaction of having done their civic duty and taken time away from their jobs and families," the judge continues as he's excoriates both lawyers.

Your lawyer and the defense lawyer look at each other with their mouths hanging open.
They've never seen this before.
They want to settle your case.

They've AGREED to settle your case.
Without the NEED to have the jury decide who is more likely right.
But the Judge is NOT allowing that to happen.

The attorneys whisper to each other...
"Can he do that?" they ask each other.
Well, can he?

Technically, the answer should be no.
The judge cannot force the attorneys to proceed to verdict.
The judge cannot compel a litigant to proceed with their case.

HOWEVER, if the litigant is REFUSING to go forward with their case (for whatever reason), the Judge has the ability to punish or sanction that person.

"You don't want to proceed forward?" the Judge asks.
"Judge, we've agreed to settle this case. We just want to put the settlement on the record," your lawyer says.
"That's not going to happen. I'm dismissing your case now. How do you like that counselor?" the Judge says in an antagonizing voice.

The Judge can threaten to dismiss the defense's answer for failing to go forward with the trial.
In that instance, you will get an automatic win on liability and causation.
The only question for the jury will be how much money to give you.

What are the attorneys to do in this scenario?
IF this were to happen, here's what both attorneys would HAVE TO DO...
They would have to make the Judge aware that both sides are willing to settle.

They'd have to put all this 'on the record'.
The Judge can't force a litigant to continue their case if they've reached an agreement, or at least shouldn't be able to force an attorney to proceed if a settlement has been agreed upon.

Putting all this on the record would ensure that whatever happened after, they could show an appellate court what the Judge did. Anyone reading the record would see that the lawyers wanted to settle and the trial Judge refused to go along with the settlement and instead forced the lawyers to go to verdict.

They could refuse to go along with the Judge's order to continue the trial and separately agree to settle the case regardless of what the Judge does with the case. There are a number of options that the attorneys could choose in this wacky scenario.

To learn more about whether a Judge could do this, I invite you to watch the quick video below...

I'm not just talking about a numerical number here.
I'm also talking about the emotional and psychological price as well.
I'm also talking about the fact that you've likely bought yourself an appeal.

Let's start with the easiest-to-calculate price...
The expenses needed to get your case TO trial as well as the expenses needed to TRY your case to verdict.
Those are real, hard, line-item costs that your attorney invests into your case in order to move it forward TO trial.

Expenses to gather your medical records.
Expenses to have a medical expert review your records to confirm you have a valid case.
Expenses to purchase an identifying number in court (we call that an index number).

Assuming you have a valid case, confirmed by a qualified medical expert, we have expenses for court stenographers when we question the doctors you have sued. There are costs to mail transcripts and to copy records for our opponents. There is a cost to deliver your lawsuit papers to the doctors you have sued. We use someone called a process server to make that happen.

There are costs to do medical research and legal research.
There's a price to to background checks on the doctors you are suing and also on you, the client. (Yes, even you.)
There's a cost to hire a social media expert to scour the social media profiles of the people you have sued, as well as you. (Yes, even you.)

There's a cost to send an attorney into court every few months to let the court know what is happening on your case.
Don't forget the attorney's time to prepare the lawsuit papers and a detailed set of documents identifying exactly what you're claiming happened and what injuries you suffered (we call that a bill of particulars). However, in these medical malpractice cases in New York and attorney does NOT bill for his time.

Instead, the ONLY way he makes any money is if you are successful in your case either by settlement or verdict.

As your case gets closer to trial, there's the expense of preparing our experts for trial. We may need new experts or experts in different specialties. The medical experts DO charge for their time. As we approach trial, there is the expense of preparing exhibits that we intend on using to help the jury understand what happened.

It might be enlarged medical records. (We call them blow-ups; 30" x 40" posterboard enlargements that we put on an easel for the jury to see). It might be for an IT guy to sit with us at trial and operate the overhead projector to display records or photographs on computer monitors. It might be for a video guy to display a videotaped deposition.

We have the cost of subpoenas that will be sent to doctors and hospitals in order to get your medical records into court. It might also be to compel one or more doctors to come into court to testify. Then of course at trial, there is the hefty expense of bringing in medical experts to testify.

Depending on what type of case this is and how many experts we need to prove our case, the pretrial expenses could range from thousands of dollars to more than one hundred thousand dollars. If your case goes all the way to verdict, again, depending on the type of case and how many different experts are needed to testify, the expenses could soar to more than $100,000.

That's just the financial side of a trial that you, the injured patient don't have to worry about in order to prosecute your case. Once we have accepted your case, we pay all those expenses with the expectation that IF you are successful in your case, our expenses get repaid to us at the end.

EMOTIONAL COST TO GO TO TRIAL

There is the emotional toll in reliving the events leading to your injury.
There will be the psychological toll of recalling all the events surrounding your injury as well as everything that happened to you afterward. You will have to describe in detail how your injuries have affected you on a daily basis as well as those activities you are no longer able to do now because of what the doctor did to you.

You will have to re-live the timeline leading up to the malpractice when you get on the witness stand at trial.
You will have to re-live these events when your attorney prepares you for being questioned and cross-examined at trial.
You will have to listen to your doctors explain to the jury what injuries you have and how it will affect you in the future.

You will have to listen to the doctors you sued tell the jury why they did nothing wrong.
You will have to walk past the doctors you sued during every break at trial.
You will see those same doctors every time you walk into and out of the courtroom, assuming they are there for the duration of trial. Many doctors are not able to be there continuously since they are often seeing patients during that time.

THE VERDICT

If you win your trial, it means that the jury has determined that yes, your doctor was careless.
It means the jury believed that his carelessness was a cause of your injury.
It also means that the jury has decided to compensate you for all the harms, losses and damages you incurred because of your negligent doctor.

Immediately after the verdict, don't be surprised when the defense attorney jumps up out of his seat, as if an ejection button were pressed, and demands the judge throw out your verdict. He's going to claim that the decision in your favor goes against the weight of the evidence.

The judge will likely hold off with any immediate decision.
Instead, he'll give the defense attorney time to gather the lengthy trial transcript and then make a formal request, on paper, to throw out your verdict. If nothing else, he'll demand that the judge reduce your verdict.
Regardless of the trial judge's post-trial decision, the defense will appeal that decision and verdict.

Let's say in this hypothetical that during the trial, the defense offered to settle and began settlement negotiations. 
You listened to their offer and rejected it as being totally inadequate.
The defense now tells your attorney that because the verdict is so large and so much in excess of what they were willing to pay during the trial, you've just bought yourself an appeal.

Yes, the cost of getting a large and outrageous verdict is that the defense will almost always appeal such a verdict.
That means it will take another one to two years before you get a decision from the appellate court.

The appeals court could leave your verdict as is.
The appellate court could throw your case out.
They could reduce the amount the jury gave you.
Alternatively, they could INCREASE the amount the jury gave you.

As a final alternative, they could decide that the amount the jury gave you was inconsistent with the evidence and direct that you try your case all over again to determine how much money you are entitled to receive.

When you're deciding whether to sue your careless doctor, keep in mind these hidden costs that nobody really talks to you about.

Want to learn how you'd FEEL if a jury gave you $5 MILLION DOLLARS? Watch the video below...

In Nassau County here in New York.
It was a sledding accident case.
I represented the winter resort who was being sued for negligence.

This was early in my career.
I'm in practice now more than 30 years.
I was probably in practice for two years at that point.

The injured victim claimed he was injured while riding a flying saucer.
You know, one of those round, plastic discs that kids jump on to go down the hill when there's snow outside.
Except the injured victim wasn't a kid.

He was an adult.
A full-grown, full-size adult man.
He decided to jump on one of these pie-pan discs and go down a hill in the middle of the Poconos.

What do you think kids like so much about this flying saucer?

The fact that you can't steer the damn thing.
The fact that it spins around as you go down the hill.
The fact that you can only hold onto the strap handles for dear life and hope it gets you to the bottom of the hill without being thrown off.

Well, this full-sized man, riding a child's toy, got on.
He started going down the hill.
The flying saucer started to spin.

He was going downhill backwards.
He couldn't see a darn thing.
He couldn't control the thing either.

He just held on for the ride.
When he reached the bottom, something happened...

He hit something hard.
He flew off the flying saucer.
Turns out he fractured his tail bone; his coccyx.

He then sued the resort, saying the resort was responsible for his injury.
He never acknowledged that he shouldn't have been on this kid's toy.
He never acknowledged that he had no way to steer or control this plastic disc.

He simply pointed a finger at this winter resort and said "YOU! YOU'RE THE OWNER, YOU'RE RESPONSIBLE FOR MY DAMN INJURY!"

Well, not so fast, hotshot.
What the heck are you doing grabbing a children's toy sitting outside another person's hotel room?
Don't you know better?

What the heck are you doing going down a plastic dish, down a hill full of heavy snow?
What are you doing getting on a disc that's known to spin?
You're blaming us because of YOUR bad judgment for getting on this toy?

You're blaming us because this disc spun around and caused YOU to go down the hill backward?
You're blaming us because there was lots of snow on the ground and you didn't see the railroad tie surrounding plantings at the base of that hill?
Should we have put up signs all around the resort warning stupid guests they shouldn't be grabbing children's toys and sledding down a hill?

Should we plaster signs all across the resort so people like him could see them and ignore those signs and do stupid things anyway?

You notice the sarcasm here?

The injured victim sued the resort.
The resort owner was furious.
He couldn't believe this guy sued him.
This 'adult' caused his own injuries!

My client was never going to settle this case.
Ever.
"We'll see you at trial," we said.

The case finally gets to trial.
My opponent was a well-known attorney.
He had achieved some remarkable results for injured victims in New York.

I was just a young, energetic and aggressive attorney who believed we had the better case.

I wanted the jury to see what this plastic toy was.
I wanted them to know how idiotic it was for this adult man to have grabbed this children's toy off a porch and sled down a hill.
The only problem was that he didn't have the flying saucer he used that day.
Nor did we have it.
We didn't even have a photograph of it.

But, we had a description of it.
The injured victim had described it in detail when I questioned him during his pre-trial question and answer session known as a deposition. He described the color, shape, size and weight.

That was perfect.
Why?
Because shortly before trial, I went into a Toys R Us and bought a flying saucer sled that was almost identical to what he described using. I was going to bring that into court and use it to cross-examine him. I was going to use it to show the jury how ridiculous it was for this man to use this child's toy and then accuse us, the resort, for HIS OWN NEGLIGENCE!

During my opening arguments I reached under the table and pulled out this flying saucer.
I held it up to the jury. 
I said "This is what this guy hopped on when he proceeded to go down this hill on that winter day."

The attorney representing the injured victim saw me holding up this flying saucer and went ballistic.
He jumped up from his seat, as if an ejection button had been pressed, and yelled out "OBJECTION JUDGE! That's not the flying saucer my client used!"

The judge agreed and told me to put the flying saucer away and not to use it again.
But the jury saw it.
They all knew what it was.

They knew what it was being I even took it out.
They all had been on one as kids.
I only had to describe it to them during my opening arguments and they knew.

This display was just to reinforce how ridiculous it was for this man to use this child's toy.

But I still wasn't satisfied.
I really wanted to confront the plaintiff (the injured victim) with this plastic dish and ridicule him for getting on this child's toy.
I did just that.

It was my turn to cross examine the plaintiff.
Now was my chance to show the jury that this guy's actions were unreasonable and ridiculous.
As I'm describing the flying saucer, he's explaining to the jury the dimensions of this disc.

He's merely repeating what he had told me a year earlier during his pretrial testimony.
THEN...

I pull out the flying saucer again.
I hold it up in front of the jury.
I start to ask him a question about this flying saucer.

The plaintiff's attorney didn't see me pull the flying saucer out from under the table at first.
He was sitting in front of me and couldn't see me unless he turned around.
As I'm holding this flying saucer up for the jury to see, the plaintiff's attorney sees this in the corner of his eye.

That ejection button was once again pressed and he jumped up out of his seat yelling "OBJECTION JUDGE! YOU TOLD HIM HE COULDN'T SHOW THAT TO THE JURY!"
The judge looked up from what he was doing, processed the attorney's objection, realized he was right and said loudly "OBJECTION SUSTAINED! COUNSELOR, I TOLD YOU DURING OPENING ARGUMENTS THAT YOU WERE NOT TO USE THAT EXHIBIT. PUT THAT THING AWAY! IF YOU TAKE IT OUT AGAIN, I'M GOING TO HOLD YOU IN CONTEMPT AND SANCTION YOU!"

Wow.
That was bad.
It's never good to be yelled at by the judge.
Especially in front of the jury.

I felt bad.
For a moment.
Then I realized I didn't feel that bad.

It was something I had to do.
I had to show the jury.
I had to make my point.

I incurred the judge's wrath.
For a good reason.
To make a point.

The jury was out a short time.
They never even got to question number two.
They stopped at question number one.

"Was the defendant negligent?"
The answer was a unanimous "No."

To hear the closing argument I made in this case, I invite you to watch the video below...

Here's another secret...

You don't have to agree with what your own attorney thinks your case is worth!
But you should.
You should at least respect what your attorney thinks your case is worth.
You should at least respect what the judge thinks your case is worth.

Let me ask you a question...

Who do you think has more experience with the value of someone's injuries?
You or your attorney?
You or the judge who sees these cases every day?

Notice I'm not asking that same question about the defense attorney.
Why not?
Because he has an agenda.

His goal, if he's trying to settle your case, is to offer as little as possible in an attempt to make your case go away.
He's trying to offer you money as a way to limit the risk he and his client and the insurance company will take if your case goes to a jury verdict.
That's why he'll offer the least amount possible.

That still may be a substantial number.
But it may not be a number that you are comfortable accepting.
Instead, you turn around and say "That's outrageous! I will never accept $1 million dollars for my injuries! My case is worth five times that, $5 million dollars."

During a break in your trial, the judge calls your attorney up to talk settlement.
"Counselor, is there any chance we can settle this case?" the judge asks.
"Judge, the defense has offered $1 million dollars and my client refuses to accept it. She will only take $5 million or more," your lawyer tells the judge in confidence.

"Let me speak to the defense," the judge says.
A few minutes later your lawyer again speaks to the judge.
"Counselor, from what I know about this case and from what the defense lawyer has just told me, this is the most they will offer. Personally, I think this is a gift and your client should take the money and run as fast as she can," the judge says.

"I'll let her know your thoughts Judge," your lawyer says.

"The judge says this is the most you'll get from the defense during settlement discussions. They won't offer another dime. He thinks you should take it and run. It's an excellent settlement offer."
You are furious.
You are angry.

Angry at your attorney for suggesting that your case is worth only $1 million.
You're angry at the judge for believing that your case is worth only $1 million.
You're angry at the defense for only offering a 'measly' $1 million.

"Screw you. Screw the judge. Screw the defense lawyer," you scream at your attorney.
"My case is worth at least $5 million," you screech. "Finish this trial and lets see how much money the jury gives me," you say defiantly.

You have every right to believe that.
You have every right to say that.
It doesn't mean you're right though.

Nor does it mean the value you placed on your injuries are right.
It simply means that I recognize your perception of the value of your case.
I recognize you believe your case has a higher value than the attorneys involved in your case as well as the judge who is overseeing your trial.

Because there's such a wide discrepancy between what the judge thinks your case is worth and what you think your case is worth, I will ask you "What makes you believe that your case is really worth five times as much as is being offered to you right now?"

I can pretty much guarantee that you won't have a good answer to that question.

You might THINK your injuries are worth more because of something you've read in the newspaper.
You might THINK your injuries are worth more because of what a friend of yours said to you.
You might THINK your injuries are worth more because of the horrific nature of what your doctor did wrong.

But there are problems with relying on each one of those.
If the defense thinks your case is worth $1 million and the judge thinks your case is worth $1 million and your attorney agrees and says your case is worth $1 million, do you think they might know something that you don't? Is it possible that you're not looking at the true value of your injuries the way an appellate court looks at it?

What makes you believe that your knowledge of the value of your injuries are more significant than these lawyers with many years of experience?
Remember, your attorney has an agenda too.
His goal is to get you as much money as possible. The more he gets for you, The more he gets for himself and his law firm.

The problem with putting a value on your injuries is that you may be at a disadvantage.
In fact, you will be at a disadvantage since you likely do not know what other similar cases have settled for.
You likely will not know what appellate courts have determined to be an appropriate value for similar injured victims.

While we can agree that every case is different and there are nuances to every injury, the fact remains that unless you've been handling cases like these for many years and truly KNOW the value of your injury in the venue where you case is pending, your perception of the value of your injuries are going to be DIFFERENT than those who truly know.

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

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...

In order to start a medical malpractice lawsuit against your doctor or hospital staff, we have to have a medical expert confirm that you have a good case. Our expert has to confirm that (1) your doctor violated the basic standards of good medical care, (2) that his wrongdoing was a cause of your injury and (3) that your injuries are significant and/or permanent.

You know you have a good case.
Your attorney suspects you have a good case.
Your medical expert confirms you have a good case.

That's it for the moment.
Only the three of you know how good a case you really have.
Now your attorney has to start your lawsuit by drafting papers alleging that your doctor was careless.

These papers are known as a 'complaint'.
He then has to deliver these papers to the doctor you are suing.
When your doctor gets your papers, he won't be able to tell yet how good a case you have.

Why not?
Because those papers are not specific enough.
Because your doctor will not have access to all your medical records at that point.

He won't know...yet.
But he will soon enough.
The doctor whom you sued will send your lawsuit papers to his insurance company.

The insurance company will read them and then forward it to lawyers they have on retainer.
Neither the insurance company or the defense attorney will know yet how good your case is.
Why not?

For the same reason that the complaint is not detailed enough for them to know.
Nor do they have your medical records so they can come to their own conclusion about how good a case you have.
What about the judge?

When will he learn how good a case you have?

Not yet.
Be patient and let me explain.
When the defense attorney responds to your allegations, he does so in a document known as an 'answer'.

The judge still has no clue what your case is about.
The court has not gotten involved in your case yet even though you've started your lawsuit.
Yes, you've filed your allegations with the court, but you're only at the very beginning of the case.

The judge assigned to oversee the discovery phase of your case, won't even meet the attorneys for many months.
Even then, he won't actually meet with the attorneys on your case.
Let me tell you why.

After the defense lawyer has responded to your claims by denying your allegations, your lawyer must prepare a document that details what you claim was done wrong and what injuries you have now because of that wrongdoing. That document is known as a bill of particulars. 

This will give the defense more information about your case.
It will explain how your doctor was careless.
It will explain what your doctor did wrong.

It will detail how bad your injuries are.
It will detail how long you were out of work and how much money you lost up till now.
The bill of particulars gives the defense the chance to learn more details about your case.

The judge still is not involved in your case yet.

At the same time as your lawyer provides this bill of particulars to the defense he must also give him copies of all the medical records he has obtained to review your case. "Here you go. This will show you exactly why we have a good case. Enjoy your reading!"

The defense attorney will go through the records your lawyer gives them to understand whether your claims have merit.
Interestingly, the defense will not trust us to give them accurate copies of the records we obtained. Instead, they want to get your medical records directly from your doctors and the hospitals where you were treated.

Ok. That means we have to give them permission slips, signed by you, that allow the defense to get copies of your medical records directly from your treating doctors and hospitals. Why do they do this? To get your records directly from the source. Why? So they can again review the records to determine if you have a good case or not.

Does the judge know yet how good your case is?
No he doesn't.
The judge still is not involved in your case yet.

When your attorney gives the defense lawyer the bill of particulars and permission slips (we call them authorizations), we also notify the court that we are now ready for a scheduling conference with the court. In New York we file a paper called a 'Notice of Medical Malpractice Action' which notifies the court that the attorneys are ready to have a conference in court to set up a schedule of when certain things will take place on your case.

It will take months for the court to notify the attorneys when to appear in court.
We call this a 'preliminary conference' or "PC" for short.
What exactly is this preliminary conference?

It's when both attorneys go into court and fill out a form directing WHEN things are to happen on your case.
It directs when each attorney must hand over copies of your medical records.
It directs when we have to give permission slips to the defense.

It directs when you will be questioned during your pre-trial question and answer session known as a deposition.
It directs when we will be able to question the doctor whom you sued.
It directs when you will be examined by a doctor for the defense and when his report must be turned over to us.

This is nothing more than a scheduling conference.
The judge does NOT get involved in these conferences.
If there is a dispute among the attorneys about when something must be exchanged, the judge's law clerk will usually intervene and help the attorneys resolve the issue. Rarely will the judge be called upon to resolve an issue during this conference.

"Are you telling me that after all these months after starting my lawsuit, the judge still has no idea whether my case is a good case?"

Yes. That's exactly what I'm saying.
The attorneys are expected to adhere to the discovery schedule that they agreed to during the preliminary conference.
Sometimes one side doesn't.

Then we may have to ask the judge to intervene and coax that attorney to do what he's supposed to do.
Even if that happens, and we have to formally ask the judge to take action, the judge will not learn just how good a case you have.
If we have to make a formal request for the judge to take action, we call that a 'motion'.

During this written request, we have to describe briefly what your case is about. However, that's NOT the opportunity to tell the judge what a great case you have. The judge isn't interested in that yet. Instead, we are now interrupting his workday to listen to this immediate dispute. The judge is ONLY interested in resolving this dispute that has brought the discovery in your case to a halt.

He needs to keep this case moving forward. 
His focus will be on unclogging the problem so we can continue with the exchange of discovery.
What's the problem?

It may be that the defense wants 20 years worth of your medical records.
We argue that they're only entitled to 3 years worth.
The judge must resolve this issue and he still won't know whether you have a great case yet.

In a few months you will be questioned by the defense lawyer in your attorneys office.
The judge won't be there to listen to your answers.
There's no jury there to listen to your answers.

But there will be a court stenographer there to record all of the questions you're asked and all of your answers.
Your answers represent your sworn pre-trial testimony.
Even though this is happening in your attorney's office, your answers carry the same exact weight as if you're testifying at trial in court.

The judge still has no idea whether you have a good case.

Within a few weeks or months, we will have a chance to question the doctor you sued.
In his lawyers' office.
Again, there's no judge there to hear the questions or the answers.

There's no jury there either.
Just the doctor, his lawyer, a court stenographer and me.
Again, the judge won't know what the questions were or what answers the doctor gave.

While this discovery process is going forward, the court wants the attorneys to report to the judge whether everything is proceeding on schedule. This is known as a compliance conference or a status conference.

The whole purpose of this conference is to let the court know whether discovery is proceeding as it should or whether there are problems that need to be resolved. In most cases, these conference are held with the judge's law clerk. Sometimes if there is a dispute that cannot be resolved with the law clerk, one or both attorneys will ask to speak to the judge.

The purpose of speaking to the judge will be to resolve a discovery dispute.
"Judge, the defense is refusing to produce their doctor despite the fact that we've scheduled his deposition five times now."
The judge's goal during this brief conference is not to tell him how good your case is. He's not interested in that yet. His goal is to resolve this immediate dispute and move your case forward. Any details about the facts of your case are incidental at the moment and only related to why discovery is not moving forward.

The judge does not yet want to know how many experts have said you have a good case.
The judge does not need to know what your lawyer thinks of your case.
Nor does the judge want the defense lawyer's opinion about case.

He only is concerned with moving the discovery process forward so your case can get to trial.

After your deposition, you are directed to appear for a physical examination by a doctor that the defense chooses.
You're told this physician is not going to treat you but only to examine you for the defense.
Weeks later, this doctor generates a report about his examination.

That report is NOT sent to the judge.
It's only sent to the defense attorney.
The defense attorney then sends a copy to your lawyer.

The judge has no idea what the defense's doctor thinks about your case or your current disabilities.

After all depositions have been done in your case and after all your medical records have been provided to the defense, your attorney will notify the court that the discovery phase of your case has finished. That means technically your case is ready for trial.

We have to file a document with the court that now puts your case on the trial calendar. 
This filing is called a 'Note of Issue'.
In this document we also ask the court for a jury trial.

In these civil cases where an injured patient is seeking money as a form of compensation for all the harms, losses and damages you suffered from your careless doctor, we have the option of having your case decided only by the trial judge or by having your case evaluated by a jury.

The judge still has no idea whether you have a good case.

It will be many months before the attorneys are called into court for a pre-trial settlement conference.
In some counties in New York, it might take nine months for the court to call us in for a settlement conference.
It might take twelve months.

It might take six.
That's because of the backlogs that exist in each county.
During that time, the judge knows nothing about your particular case.

Finally, after many months of waiting, the court notifies the attorneys that they are to appear for a pre-trial settlement conference.

This is the time that the judge will learn what your case is really about.
This is the time that your attorney will tell the judge what a good case you have.
This is the time that your lawyer will explain why your experts have confirmed you have a meritorious case.

This is the time the judge will see if your case can be settled without the need to go to trial.
This is the time the judge will ask the defense attorney what their position is and whether they have money to try and settle.
Often the defense lawyer is unable to give the judge an answer since the insurance company has not yet 'conferenced' the case with the attorney and their experts.

"Judge, can we get a few months to see if the insurance carrier is willing to negotiate? They'll have conference this case by that time and I will have an answer for you at the next conference," the defense lawyer says to the judge.

This is really the first time that the judge assigned to oversee discovery on your case will learn just how good a case you have. 

To learn whether you can speak to the judge during this settlement conference, I invite you to watch the quick video below...

Or so you said.

Maybe your doctor was careless.
His wrongdoing caused you harm.
Permanent harm.

Or so you said.

When you bring a lawsuit seeking compensation for the harms, losses and damages you suffered because of someone's carelessness, the people you sued don't really know if what you're saying is true. They don't know anything about you...yet. But they will.

They will dig up every piece of dirt they can find on you.
They will scour your background.
They will examine your medical records with a fine tooth comb.

They will search the internet, high and low, for anything they can find about you.
That includes all of your social media.
Facebook. Twitter. Instagram. Snapchat. LinkedIn.

They will look at all of it.
No matter your privacy settings.
They will wheedle their way into your friend network usually by an investigator they hire.

Once there, they will delve deep.
They'll have the details of what you're claiming was done wrong.
They'll have details of what injuries you claim you suffered.

Then they'll start searching.
Searching for texts.
Searching for photographs.

Searching for videos.
Especially anything that you posted after getting injured.
Even if you didn't post a photo or video directly.

They will look for any photos or videos in which you're tagged in.
If you sent a photo to your friends about hiking up that mountain after your accident and you claim you can't hike or play basketball because of your injury, you've got some explaining to do. Especially if your friend posted that photo somewhere online and tagged you in the photo. There's a good chance that photo still has all the metadata attached to it including where the photo was taken and when.

But you aren't aware of any of this.
All you know is that you started a lawsuit.
You ignored your attorney's warning not to put anything on social media about the details of your case or your activities after you were injured.

You figured your attorney didn't know what he was talking about.

You figured your privacy settings would make all of your postings private.
You figured that nobody would be able to access your photos, videos and text for anything you posted after your accident.

You neglected to tell your lawyer about your posting activities.
When you were questioned at your pre-trial question and answer session known as a deposition, you were asked lots of questions. Questions about your current activity level. Questions about things you can and can't do now. Questions about what you're limited from doing now because of your 'permanent' injuries.

You swore to tell the truth.
You swore under penalty of perjury.
Your attorney believed you.

The defense attorney appeared to believe you as well.
But he knew better.
He knew you were being less than truthful.

But he didn't confront you yet.
He simply locked you into your testimony.
He wanted to make a solid record.

He wanted you to commit to what you claim you can no longer do or do with difficulty.
He wanted to find out from you, in your own words, what you can't do anymore.
You said, without any hesitation, that you can't hike anymore.

You said you can't play basketball.
You said you are unable to play football.
These are YOUR words.

You made these statements voluntarily.
You made these statements thinking they were true at the moment.
You said these things while giving sworn testimony in your attorney's office.

You never once considered what would happen if the defense knew you posted those pictures on Facebook after the accident. You never considered what would happen to your case if the defense lawyer saw those videos of you playing tackle football. It never even crossed your mind.

Those were private posts...or so you thought.

After your deposition, the defense hired a private investigator to try and catch you on video doing those activities you claim you can't do anymore. You never even saw the guy following you on two separate days. At the same time, the defense lawyer sends a demand letter to your attorney.

"We want access to your clients' social media accounts, including all private postings for a year before this accident."

Your lawyer calls you up and asks if there's anything there he needs to worry about.
You bluff and say "Of course not."
"I'm going to fight this request," he says.

The problem is that the defense knows something your attorney doesn't.
They tell the judge they have reason to believe you posted photos, videos and texts about your activities after your accident. You of course denied doing any of those activities after your accident. The judge rules in favor of the defense lawyer. That means your attorney must now provide your login information for your social media accounts limited to one year before your accident up till the present time.

Your attorney wants to know what's in your account.
He calls you into his office and you go through your Facebook account.
He finds it.

He's upset.
He's very upset.
"You had a good case," he says to you while struggling not to scream and yell.

"Now you've screwed up your case big time," he tells you sternly.
You try and make light of it.
"What's the big deal?" you say lightheartedly.

"It's just some stupid posts about what I was doing at the time," you say.
"That's exactly the point!" your attorney yells.
"YOU SWORE, UNDER OATH, THAT YOU COULDN'T DO THESE ACTIVITIES AFTER YOUR ACCIDENT!"

"Now the defense will find this and you're screwed," your lawyer says.
"What if I delete it before the defense has a chance to see it?" you ask sincerely.
Your lawyer has steam coming from his ears.

"DON'T FREAKIN' TOUCH ANYTHING. UNDER NO CIRCUMSTANCE ARE YOU TO DELETE ANY POSTS!" your attorney screams. If you do that, you're intentionally destroying evidence. That's even worse than what you've already done.

What you've done is destroy your credibility.
Maybe you can explain.
Maybe you can explain how you were trying to do those activities even with pain.

You might have a reasonable explanation about how and why you posted those photos and videos doing those activities. Maybe you couldn't bear to sit around all day doing nothing. You wanted to try. Your friends wanted to capture those moments and share them online, feeling proud of your attempt to overcome your disabling injuries. Like I said, there may be a rational explanation.

At trial, the defense will most certainly use that information against you.
You'll have to explain it away and will have to do it first.
You cannot ignore it, hoping the defense won't attack it.

They will and they will tear you apart if you fail to mention it during your testimony.

To learn more about posting on social media during your lawsuit, I invite you to watch the quick video below...