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How to Steal Defense's Thunder at Trial When Defense Knows Something About You, But Jury Doesn't Know Yet

The defense did their homework.

They did a search on you.

Both online and offline.

They dug up some juicy dirt on you.

They're prepared to spring it on you during your pretrial testimony.

They want to catch you in a lie.

They want to show that your credibility is in the toilet.

The way to do that is to set you up.

They're hoping you're going to lie.

They're hoping I didn't prepare you for your pretrial testimony well.

They're hoping I didn't discuss your past history with you.

They want to catch you by surprise.

This is every defense attorney's dream.

Once in a while, their dream comes true.

Once in a while, the attorney doesn't do his job and fails to explore something in your background.

Once in a while, you, the injured client, fail to disclose to your attorney something bad that happened to you many years ago.

Let me give you a great example of what I'm talking about.

Let's say when you were young, you did something REALLY stupid.

Let's say you robbed a bank.

You were caught.

You went to prison for ten years. 

TEN YEARS!

When you got out you resumed living a 'normal' life.

You went to your doctor for routine checkups.

Two years ago you were diagnosed with lung cancer.

You went to get a second opinion and it turns out that the x-rays taken a few years earlier showed that you had lung cancer back then, but the radiologist never detected it.

Your second doctor said that if your lung cancer had been detected when it was observable on the x-rays a few years ago, it would have been stage one and would have been treated with a small excisional surgery, then radiation.

Now, your cancer is Stage IV and you have only about 6 months to live.

You have a family and knowing that your life is ending, you choose to bring a lawsuit against the radiologist for failing to timely and accurately detect your lung cancer. You are seeking compensation for the harms and losses you have suffered and will suffer into the forseeable future as a result of the doctor's negligence and carelessness.

Before starting your lawsuit you tell your attorney about something that happened in your past that he needs to know about.

You know that anything you say to your lawyer is confidential.

You tell him about your bank robbery when you were a stupid punk in your twenties and how you paid your debt to society by spending ten years of your life in a medium security prison.

Your attorney takes this information in with a straight, professional face.

He makes some notes on a legal pad and tells you not to worry about it. 

Before leaving your attorney's office that day, he says one important thing to you.

"When you are asked questions by the defense lawyer during your pretrial testimony, which you will do here in my office, and he asks you if you have ever been convicted, you tell him honestly, yes. Do not hesitate. Tell him the truth. When he asks you what you were convicted of, tell him. When he asks for the facts, give him only a summary. When he asks for how much jail time you did, tell him."

You ask, "Why does he need to know this information if it has nothing to do with my medical malpractice claim against this radiologist?"

Your lawyer says, "You're right. It has absolutely nothing to do with what you did twenty years ago. The radiologist's misreading of your x-rays has nothing whatsoever to do with your bank robbery twenty years ago."

"However, if you lie about your past history, the defense lawyer will tear you to shreds. He will know you've been convicted. He will know you were in jail. He will know much of your background and history from his investigation of you. He will try to destroy your credibility every chance he gets," your attorney tells you.

"Your goal is not to give him that chance. Your goal is to be honest and tell him the truth. If you tell him the truth, you will steal his thunder. He won't be able to show that you lied about your history. Then we'll deal with that at trial at the right time..."

The other way that we steal the defendant's thunder using the same set of facts is at trial.

From the very first moment I talk to potential jurors during jury selection, I tell them I have a confession to make.

I tell these people from the community who are potentially going to be deciding who is more likely right than wrong in this medical malpractice case that I have a confession.

A confession that they'll be shocked to hear.

A confession that will be morally repugnant.

A confession that will bring out strong feelings of justice.

A confession about my client who did something very bad when he was younger.

In fact, I tell them my client was a bad person when younger.

I want these potential jurors to immediately understand that my client did something bad and paid for it dearly. He paid his debt to society.

Now remember, I can't go into details about what happened during jury selection, but I can allude to his bad act. I can allude to fact that he was away from his family for a long time.

My goal is to get the jury to recognize there's something in my client's past that they need to know about. 

My goal is to be the FIRST ONE to tell the jury about my client's bad history.

Then, while still in jury selection, I will ask each juror individually whether they can put that aside and focus on the real issues in this case; the doctor's violation from the standard of care. The departure from good medical practice that is going to cost my client his life.

Most every juror will begin to understand that whatever my client did twenty years ago, even though it was bad, is totally unrelated to the claim aginst the radiologist for failing to properly read and interpret his chest x-rays.

Now, another key way I will steal the defendant's thunder is to come right out during my opening argument and tell the jury EXACTLY what my client did twenty years ago. I will be straight with them and tell them the truth. I will let them know he was stupid for doing what he did. I will tell them he was caught. I will tell them he went to prison and spent one third of his life behind bars. I will tell the jury that he has paid his debt to society.

Then, I will remind them that this stupid incident has absolutely nothing to do with the claims being made in this lawsuit. Nothing.

That's how you steal the defendant's thunder.

Here's what would happen if we put our head in the sand and imagined or pretented that the defense would never find out about my client's conviction and prison time...

During pre-trial testimony here's the series of questions that would be asked by the defense lawyer...

"Mr. Jones, have you ever been convicted of a crime?"

"No," he replies.

"Never?" the attorney asks gently.

"Nope," he answers authoritatitvely.

"Have you ever been convicted of a felony in any state?" the defense lawyer probes.

"Nope."

"Have you ever pled guilty to any crime, not include traffic tickets or moving violations?"

"Nope."

BOOM!

What just happened here?

In this scenario, the injured client has just lied.

He lied big time.

He was trying to hide his past, thinking that the defense lawyer was just fishing for information.

The problem was, he wasn't fishing. He was probing to lock you into your tetsimony.

He wanted to see if you'd take the bait and hang yourself with it.

In this scenario, you did.

Here's how that would play out at trial...

The defense lawyer would ask the same set of questions about whether you were ever convicted or pled guilty to any crime in any state.

Assuming you answered the same exact way, the defense attorney would likely ask you a few more questions just to make sure he locked you into a box that you couldn't get out of.

Then he'll spring the trap on you.

"Mr. Jones, isn't it true your birthdate is January 1, 1971?"

"Yes."

"You were born in Jackson Heights, Queens, correct?"

"Your mother is Sheila and your dad is Alvin, right?"

"You went to high school at P.S. 141, right?"

"Your principal was Mr. Johnson, right?"

"You're married to Marla and have two kids, a boy and a girl, correct?"

"Isn't it true that from 1992 until 2002 you did not live with your wife and children?"

"Isn't it true that from 1992-2002 you lived in a medium security prison in upstate New York?"

"Isn't it true that the ONLY reason you were in prison is because you were CONVICTED of a crime?"

"That crime involved bank robbery?"

"That crime involved armed bank robbery?"

"You had a loaded 9mm handgun when you walked into that bank, true?"

"Your intention was to steal the bank's money, right?"

"You intented to shoot the teller if she didn't give you the money, right?"

Then, the defense lawyer will point out that you lied during your pretrial testimony as well.

He will have a field day.

He will destroy your credibility.

He will show the jury that you are a liar.

He will show the jury that you cannot be trusted.

He will show the jury that despite your debt paid to society, you were not truly rehabilitated.

He will argue during closing arguments that none of your testimony is to be believed.

He will ask the judge to give the jury a legal instruction at the end of the trial called 'falsus in uno'.

That's a fancy latin term that basically means that if you testify falsely about one thing, you have the right to disregard everything this witness has said. The argument is that someone who lies about a small thing may be lying about other things as well.

Here's another way the defense attorney will use his knowledge of your history at trial.

Let's say from a strategic standpoint we don't believe the defense knows about your past. (That's a really bad assumption for a plaintiff's attorney to make, but for argument's sake, let's say that's what happened.)

After I make opening remarks focusing only on the malpractice, the defense attorney will have a chance to get up and explain to the jury what he believes the proof will show.

One of the first things the defense lawyer will do is start getting angry. He'll get this righteous indignation and focus his anger on my client and on me.

He'll point to the jury and declare "There's something that Oginski failed to tell you. Something they obviously wanted to hide from you. Something that they hoped you'd never find out about..."

Believe me, if you're on the receiving end of this, you will never forget it.

"Did you know that Oginski's client is a CONVICTED FELON? Yes! Right here in this very courtroom. That man over there is a convict. A man who spent ten years in prison. I didn't hear Oginski say one word about this to you. Why not? Was he ashamed? Did he fear that you'd hold it against his client if he told you?

This trial is all about credibility.

Who do you believe? What we know now is that the plaintiff was a bank robber. The evidence in this case will show that this convicted felon walked into a bank on Main Street here in town with a loaded 9mm Glock handgun; by the way, the gun was stolen too. He had a lookout. He had a getaway car. This wasn't his first rodeo either. He'd been in lots of trouble before.

Oh wait...you mean Oginski never told you about that?

The attorney's tone and voice getting louder and angrier.

The proof will show that this felon is a liar. He lied in his criminal trial. He lied about who he was. He lied about his cohorts. He lied about whose gun it was. The jury in that case found him GUILTY! GUILTY! GUILTY!

He never accepted or admitted his guilt.

He always denied it.

I'm going to read you portions of his trial transcript to show you how many times he lied.

Then at the end of the trial, you're going to ask yourselves if you can honestly believe a single word this convicted felon has to say."

After this opening it's all downhill from there.

The only way to steal the defense lawyer's thunder from this devastating opening argument is to tell the jury about it FIRST!

Then there's no thunder left.

Sure the defense lawyer will talk about it.

Sure the attorney will cross-examine my client about it.

But there's no more thunder since my client readiliy admits it.

He doesn't hide from it.

We don't hide from it.

We come right out and tell the jury and the court what he did.

We own up to it.

We admit it.

We tell them and acknowledge it was terrible.

Then, we show the jury why those stupid acts have absolutely nothing to do with the claims being made in this malpractice case.

To learn even more about how to steal the defense's thunder at trial in a civil lawsuit here in New York, I invite you to watch the video below...

 


Gerry Oginski
NY Medical Malpractice & Personal Injury Trial Lawyer