At the age of 27, only two years out of law school, I was trying a brain damaged baby case representing an obstetrician. My adversary was a very well-known and very experienced trial lawyer. One of the best in New York.

As I was preparing the case for trial, I expressed some reservations about going up against this well-known plaintiff’s attorney. This same attorney was responsible for some of the largest verdicts in New York history.

The boss told me that I was ready.
He told me he wanted me to use this as a learning experience.
He wanted me to pick a jury with this big-shot attorney.
Make opening arguments with him.
Take testimony and conduct cross-examination with him.

Then, if needed, settle the case or take it to verdict. “Your choice,” he said.

I was only 27.
I was ready.
But this was my first brain damaged baby case where I was defending the obstetrician.

The case would be tried in Nassau County.

While preparing this case for trial, my client, the doctor, felt he did nothing wrong.
He was adamant.
He believed he rendered good care.
He felt the baby’s injuries were not of his doing.

Our in-house medical expert disagreed.
Big time.
Our in-house expert believed our doctor was fully to blame.
He felt our doctor violated the basic standards of obstetrical care.

I then had to retain an ‘outside’ obstetrical expert.
He reviewed the records.
He was a big shot at a well-known University medical school in NYC.
My outside expert agreed totally with our in-house medical expert.

That was bad...
For my client.
That meant we had  absolutely no medical support for our position.
That meant that I had to settle this case.

I could not try the case.
Not legally.
We had no defense.

That was bad...

My client disagreed.
He disagreed with my big-shot ob/gyn expert at a big-shot NYC hospital.
That’s Ok. He has every right to disagree.

I set up a meeting with my doctor client and my big-shot expert.
It took place at the medical school where my expert had his office.

The meeting lasted two hours.

It was repeatedly punctuated by my expert saying “Don’t you know what the standard of care was at that time?”

“Didn’t you know that is a departure from good medical practice?”
“Didn’t you realize that under no circumstances can you do that in this situation?”

As my client and I walked out of that meeting, my client turned to me and said “Ok, settle the case.”

However, I couldn’t settle the case...yet.
My boss wanted me to try the case.
He wanted me to gain experience.
He wanted me to go up against this world-famous plaintiff’s trial lawyer.

There was time to settle, he told me.

I came into court for jury selection.
I walked up to my adversary and introduced myself.
I knew who he was.
Every personal injury attorney in NY knew who he was.

I got the feeling he was looking behind me to see who was really trying this case.

Nobody else.
Just me.
All by myself.

We picked a jury over a few days.
His son was with him, second seating him.
Hi son was just a few years older than I was.

That was quite an experience.
I knew I got played during jury selection.
I knew I had to remove certain jurors.
He knew I had to remove some jurors.

He forced me to use my challenges to remove some jurors.

I didn’t realize what he did till it was over.
I learned a big lesson from that.
It was a great strategy that worked...for him.

I’ll share a little secret with you...
During jury selection all four attorneys went out to lunch together.
Two defense attorneys and this big-shot attorney with his attorney son.
One day we ate at a nice restaurant.
Another day we ate at a deli.

This big-shot lawyer drove to court in his Rolls Royce.

We went to lunch together because we knew we’d get to know each other.
Not many adversaries have lunch together.
It was clear however, that once trial started, none of us would be eating together.

It would send the wrong message to our clients.

On the day we started the trial, Mr. Big Shot had a team of people with exhibits.
It was just me and my obstetrician client.
The other defense lawyer represented the hospital.
He told the jury he just couldn’t bring in the bricks and mortar that made up the hospital.

Opening arguments were powerful.
The big-shot attorney made great arguments.
I almost started to believe him.
Actually, I did, based on my expert’s opinions.
But, I couldn’t let on that I did.

I then gave my opening remarks.
My client was in the courtroom.
I knew he recognized that our defenses were hollow but he appreciated my efforts.

I knew we couldn’t ethically go further.
We didn’t have a leg to stand on.
Although I could cross-examine his witnesses and his experts, I had none of my own that could support our case.

After opening arguments I asked the judge if I could speak with him.
I told him we wanted to try and settle.
The judge excused the jury and we began to negotiate.

One hour later, with the jury still waiting, we settled this brain damaged baby case.
For a significant sum.
My client was resigned to accept the settlement.
The plaintiff’s attorney agreed to accept the settlement.

It was a great learning experience and one that I remember vividly 23 years ago.

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

Gerry Oginski
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NY Medical Malpractice & Personal Injury Trial Lawyer