It's been a long three weeks.

Three weeks of testimony.

Three weeks of witnesses proclaiming their side is right and the other is wrong.

It's a medical malpractice trial.

Here in New York.

Both the plaintiff's attorney, who represents the injured patient and the defense attorney, who represents the doctor, have just made their closing arguments.

If you were sitting in the back of the courtroom listening to these arguments you might be swayed by these compelling arguments.

The jury is feeling the same way.

Yet during these three weeks, the jury has been repeatedly told by the judge that they are not to discuss the case amongst themselves or with people outside of court.

The only time they are to start discussing the case is after closing remarks have been made and after the judge has given them the law in this case.

You see, at the end of the trial, the judge will instruct the jury on what the law is.

The jury is required to follow the law.

The jury is supposed to determine whether the injured patient is more likely right than wrong in what she is claiming is true.

The six members of the community who form the jury are 'fact-finders'.

They decide who is right and who isn't.

The jury decides who they believe and who they don't.

The judge explains the law.

For example, when the judge describes what 'medical malpractice' is, he will likely say it is medical negligence or medical carelessness.

When the judge describes 'proximate cause', he will explain that is the connection between the doctor's wrongdoing and the patient's injury.

Proximate cause, also known as causation, has sometimes been described as the sequence of events that brought the patient to court.

In a civil lawsuit involving improper medical care, a patient must establish (1) liability, (2) causation and (3) damages.

Put another way, an injured patient must have a medical expert who confirms (1) there was wrongdoing, (2) the wrongdoing caused injury and (3) the injury is significant and/or permanent.

The judge spends a good deal of time with the jury at the end of the trial explaining the law.

Fun fact...

Before the judge decides which sections of law he is going to discuss with the jury, he will have extensive discussions with the attorneys first.

In fact, at the very beginning of the trial, each attorney is required to present to the judge a document known as "Requests to charge."

This is a document containing various sections of law that each attorney wants the judge to discuss with the jury at the end of the trial.

You should know that there are competing areas of law that each side wants explained.

The judge will agree with some of these and refuse to discuss others.

Each side must argue for particular sections of law that they believe is relevant.

When the trial is coming to a close, the judge will have a private conferenc with the attorneys in his chambers.

This is known as a 'Charge conference'.

A court stenographer will be present to record all conversations held in the judge's chambers.

The fate of this case may rest with which sections of law the judge decides to discuss with the jury.

The judge gives each attorney an opportunity to make his case about the various sections of law he wants explained.

The judge then listens to arguments from the opposing attorney.

The judge then makes a ruling about whether he will or won't discuss that specific area of law requested.

This process continues on for each and every request made by the attorneys.

At the end of this 'charge conference', the attorneys will know exactly which sections of law the judge will explain.

This gives the attorneys insight and advance knowledge so they can prepare and tailor their closing arguments to those areas of law they know the judge will be discussing.

You should also know that attorneys are prohibited from explaining the law to the jury during closing arguments.

That's the judge's function.

But there are different strategies that can be used to interweave elements of the law into closing arguments.

Ok, let's get back to the trial...

When the judge is explaining the law to the jury, we say that the judge is 'charging the jury'.

To make sure the jury is not disturbed during this process, the judge will have the court officer lock the courtroom door.

No, it's not to keep people from leaving but rather to keep people from entering while the judge is explaining.

The judge tells the jury that they are required to follow his legal instructions.

They must do this regardless of their own personal beliefs.

They must do this regardless of whether they think the law is correct.

After an hour or more of the judge giving explcit legal instructions to the jury, he instructs them to go into to the jury room and begin deliberating.

This first thing they will do is select a jury foreperson.

That person has no greater voting rights, but is simply one to lead the discussions.

You should know that in order to reach a verdict, the jury will be required to answer a series of questions.

These are known as jury interrogatories.

In a medical malpractice case the jury will typically have to answer questions like these...

(1) "Was the defendant Dr. Clumsy Hands negligent?"

Yes or no?

If your answer is 'Yes' then go on to the next question.

If the answer is no, report to the court officer that you have finished.

(2) Was the defendant's negligence a cause of this patient's injuries?

If the answer is yes, continue to the next question.

If the answer is no, report to the court officer that you have finished.

Now the jury will be required to answer questions about damages.

Questions about how much money she is to receive as a form of compensation for all the harms, losses and injuries she suffered.

Questions about her pain and suffering.

Questions about her lost income.

Questions about her medical expenses.

Questions about her future medical care.

Once the jury goes into the jury room to deliberate, they're on their own.

The judge is not present.

The attorneys are not present.

There is no court officer in the room with them.

There is no court reporter there.

There are no video cameras in the jury deliberation room.

So, how does the judge know if the jury is really following his legal instructions?

How do the attorneys know if the jurors are following the judge's legal instructions?

If the judge and the attorneys are not in the jury room and there's no video or audio in there either, how does anyone outside know if the jury is following the judge's instructions?

In reality, they don't.

However, there are certain safeguards that can be put in place by the attorneys, but only if done correctly at the very beginning of the trial.

Actually, during jury selection is when it has to happen.

Before the trial ever begins.

Before the jury has been selected.

Let's talk about jury selection for a moment and why it's so important to address this with potential jurors.

In a medical malpractice case that proceeds to trial, we are asking six members of the community to resolve a dispute.

This patient believes her doctor was careless.

She believes his carelessness caused her harm.

She believes her injuries are permanent.

In order to start a lawsuit here in NY for medical malpractice, I need a board-certified medical expert to confirm each of those things.

If my medical expert confirms we have a valid case, then and only then am I permitted to file a lawsuit on my clients' behalf.

Six members of the community who say they can be fair and impartial will be called upon to decide if what she is claiming is more likely true than not true. 

The defense on the other hand claims they did nothing wrong.

They also claim that if they did something wrong, you, the patient, also contributed to your injuries.

They also claim that your injuries are really not as bad as you claim them to be.

So here we have a dispute.

A hotly contested dispute.

A dispute that the parties and litigants have been unable to resolve for years now.

If the patient is right, she's entitled by law to receive money as a form of compensation for her injuries.

Compensation for all the harms, losses and injuries she incurred because of this doctor's carelessness.

If the doctor is right, the patient loses and she receives nothing.

That means all of the time, energy and resources her attorney invested in this case is thrown out the window.

He gets nothing.

He never gets his litigation expenses that he paid out of his own pocket repaid to his law firm.

He goes home empty handed, like his client.

That's the risk a trial attorney takes when accepting a medical malpractice case.

That's why you will find the best trial attorneys in NY are very selective about which cases they will accept.

During jury selection it is important to ask the jurors questions about their beliefs.

Not religious beliefs, but personal and philosophical beliefs.

Questions about whether they believe doctors can do no wrong.

Questions about whether they recognize doctors are human and can make errors.

Questions about whether doctors should be held accountable for their actions.

In order to truly know if a juror is not following the law during jury deliberations, I must first educate these potential jurors during jury selection.

Basically, I am asking and demanding that they police themselves.

I want them to report a fellow juror is not following the judge's instructions.

I want them to speak up and tell the judge if one of the jurors disregards his legal instructions.

But simply wanting the jurors to do this and getting them to promise that they will do this are two different things.

I must get commitments from each and every potential juror that they will do this.

This is the only way it will work.

Let me show you a series of questions that will explain how I do this... 

“Ladies and gentlemen, during the course of this trial the judge will be giving you different instructions. Instructions on why you should not talk to anybody about the facts this case. Instructions about not doing research online concerning both the doctor or the patient. Instructions about not talking to the attorneys during the course of trial, during a break or at the end of the day.

You must follow those instructions.

At the end of this trial, after closing arguments, the judge will give you very specific legal instructions.

You are again required to follow those instructions.

If you disagree with those legal instructions at the end of the trial, the judge will tell you you must follow those instructions regardless of your own personal beliefs.

Will you be able to do that?

Mrs. Jones, can you promise to follow the judge's instructions when he explains the law to you after closing arguments?

You might think that the judge's definition of medical malpractice might not be what you expect.

You might have your own idea of justice in this case.

You might have feelings that differ from what the law says you must do.

For example, if the judge tells you that you do not have to sit in the jury room for weeks making absolutely sure this doctor was careless are you going to require the patient show you with 100% certainty that this doctor was negligent?

If the judge tells you that the patient only has to show that she is slightly more right than wrong, can you accept that legal rule and apply it to this case?

If you find that one of your fellow jurors is not following the judge's instructions will you speak up?

Would you be willing to knock on the jury door and notify the court officer that you need to speak to the judge?

Would you be willing to alert the judge to the fact that one of your fellow jurors is refusing to follow the judge's instructions?

When you take an oath to uphold the law when deciding this case, you undertake a promise and a commitment to follow the law as the judge described to you.

Can you do that?

Can you look me in the eye and promise me that you will alert the court if one of your fellow jurors is not doing that?”

These questions are designed to get jurors to understand the importance of the judge's legal instructions.

It's also designed to let the entire jury panel know that they must police themselves.

Once each juror has promised to notify the court if someone is refusing to follow the law, I have now set in motion the likelihood that jurors will police themselves.

To reinforce these promises that the jurors gave me at the beginning of the case, it is important to remind them of this fact during closing argument.

“Each one of you made a promise to me and to the court at the very beginning of this case. When I chatted with you during jury selection each one of you looked me in the eye and promised that you would follow the law as the judge explained it. You also promised that if one of your fellow jurors was not following the law, then you would notify the court immediately.

When you took an oath as a juror at the beginning of this case, you promised yourself and your fellow jurors that you would do what was right based upon the law and the facts of this case. I want to remind you of how important that obligation is as you are now about to begin your deliberations...”

Only by getting the jurors to make this commitment before they are actually chosen as jurors will they be able to police themselves later at the end of the trial.

This way, the attorneys have some level of reassurance that the jurors will be applying the law as the judge gives it to them and then deciding which facts they believe to be more likely true than not true.

To learn even more about how the judge knows if the jury is following his legal instructions, I invite you to watch the quick video below...




Gerry Oginski
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NY Medical Malpractice & Personal Injury Trial Lawyer