I knew they didn’t have an expert.

I knew the defense couldn’t try this case.

They were bluffing.

It was now two years since we started this lawsuit.

A lawsuit started against the doctor who cared for my client.

Someone my client trusted initially.

He was a great doctor…or so she thought.

He came highly recommended.

Throughout this lawsuit, the defense refused to acknowledge they did anything wrong.

They were defiant.

They were insistent.

The doctor, during his pretrial testimony, demanded to know why he was dragged into this case since he did nothing wrong.

All along, we knew he was wrong.

All along, we had a medical expert who confirmed he was wrong.

All along, we were getting attacked from the defense saying we were barking up the wrong tree.

We had the wrong guy.

We had the wrong expert.

We had the wrong injuries.

The defense never even acknowledged the severity of my client’s injuries.

Since they argued they did nothing wrong, they never considered her injuries.

The defense was wrong.

We knew it.

My client knew it.

I knew it.

My expert knew it.

The defense didn’t know it…yet.

But they would.

Well, after two years of discovery, we put the case on the trial calendar.

That tells the court that we are now ready for trial.

That means it will be many months before we actually get  trial date.

That also meant that we would have three to five pretrial conferences with the trial assignment judge to see if the defense is interested in trying to settle this case.

The defense delayed.

They weren’t ready.

They hadn’t evaluated the case yet.

They needed more time.

To evaluate the case they said.

The judge said “Fine. Come back in a month.”

We came back in a month and they still didn’t do what they promised to do.

They pleaded with the judge for still more time.

“Another month Judge, we promise…”

The judge agreed to give them another month.

They had new information at the next conference.

They had reviewed the case.

But there was a problem.

The doctor refused to consent to settle.

“Judge, we need more time to talk to the doctor to get his consent to settle…”

“Fine,” the judge said. “You have another month.”

The following month the defense had more news.

“Yes Judge, the doctor has now given his consent, but the insurance company hasn’t given us authority to settle. Can you give us another month?”

“Fine. Another month,” the judge replied.

When we returned, the judge said “I don’t want to hear any excuses. Go put a jury selection slip in to the jury clerk. He’ll call you in a few months when your case comes up for jury selection.”

As I was walking out of the courtroom that day, the defense attorney comes over and tells me that now the doctor has consented to begin negotiations, they’d like to try and mediate this case with an impartial mediator, privately. Outside of court.

“Would you be willing to mediate this case?” the defense lawyer asked me.

“Yes. I’m always willing to talk, but there’s no guarantee we will settle this case,” I responded.

Let’s get back to the first sentence of this article…

I knew the defense didn’t have an expert.

How did I know?


As the case approaches trial, each side is required to notify our opponent that we have hired and retained medical experts. We are required to tell our adversaries what medical specialty the expert practices as well as what the expert can be expected to say at trial.

I had notified my adversary over a year earlier about our medical expert.

I told them my expert’s qualifications.

I told them what my expert was going to say.

I told them where my expert went to medical school and where she did her post-graduate training including an internship and residency.

I told them what academic titles my expert had and where she was licensed to practice.

I also told the defense that my expert was board certified in this field of medicine.

What I DIDN’T tell the defense was my expert’s NAME.

That’s something that the law in NY says we do not need to disclose.

But, you should know that it’s a simple matter of plugging in the doctor’s credentials into a computer program in order to identify exactly which expert we are bringing in to testify.

So here's the scenario…

I had notified the defense more than a year ago that we had retained a board-certified expert to testify on our behalf.

We are now approaching trial and the defense still has failed to notify me that they have retained any expert to testify on their behalf.

There is only one real reason why the defense would not notify me so close to trial.

It's because they didn't have an expert to support their defense.

Ironically, during our mediation with an impartial mediator, I have an opportunity to make a brief presentation about what this case involves. Likewise, when I am done, the defense has an opportunity to make a brief presentation about what their defenses are.

During my initial remarks I pointed out to the mediator that the defense did not have an expert.

To my surprise, the defense disputed this claim and argued that they indeed had an expert and we're waiting till we got closer to trial in order to exchange his credentials and his anticipated expert testimony.

I didn't believe them for second.

You should know that If an attorney hires a medical expert to testify and fails to notify his opponent within a reasonable time prior to trial, the judge can fine him and sanction him for failing to follow the rules.

Our mediator was very experienced.

He’d been handling these types of cases for more than 30 years.

The mediator's job involves trying get the parties to recognize that each side has weaknesses that can be exploited at trial.

The mediator tries to put pressure on both sides to reduce their settlement demand and to increase the defense’s offer in an attempt to reach an agreement that all sides can live with.

A savvy mediator knows what buttons to push for each side. He gets a gestalt and a sense of how far the defense is willing to go to try and settle this case. Likewise, he must probe the plaintiff's attorney to see where they are willing to go in an attempt to settle the case.

Not every case can be settled during mediation.

Some defense attorneys and their insurance representatives refuse to offer more than a specific number.

On the other hand, some injured victims refuse to take less than a certain amount.

If both sides are far apart, then the mediator has failed to reach a consensus and the parties will walk away unsatisfied without having settled this case.

You should know that detailed settlement talks can never be used against one side or the other at the time trial.

It is also important to know at settlement talks such as those that occur during mediation are never disclosed to the jury at trial. It is nothing that they need to consider.

When a case goes to trial and now a jury is selected, their entire goal is to determine whether the injured victim is able to show that they are more likely right than wrong that what they're claiming is true.

If the answer is yes, then they're obligated to compensate the injured victim for all of her harms, losses and damages she incurred because of someone else's carelessness.

I knew the defense didn't have a medical expert to support their claim.

That gave me a tremendous amount of leverage during settlement discussions.

Settlement discussions are all about who has the better case and what the chances are of being able to show a jury that we are more likely right than wrong at trial.

If the defense recognizes there is a substantial risk for a significant jury verdict against them, it creates an advantage for us and also puts pressure on the defense to try and resolve the case during mediation.

I knew they didn't have a medical expert.

That made all the difference in the world. 

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


Gerry Oginski
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NY Medical Malpractice & Personal Injury Trial Lawyer