I was only two years out of law school.

I had been trying cases for a while under the supervision of my mentor. He was one of the best defense trial attorneys in New York. He was a fierce and feared adversary. Going to trial in my firm was like going to war.

Battle plans. Strategies. Meetings. Late-night research. Meeting with experts. Consulting with other trial attorneys in the firm. Getting advice from my boss. All of these were necessary and required to prepare for what was, at that time, the biggest case I'd ever handled.

At that point in my career I was defending doctors and hospitals in medical malpractice cases.


One day, my boss came to me and told me he wanted me to try a case representing an obstetrician in a brain-damaged baby case.

I was thrilled. I was ecstatic. I was scared.

There was a lot at stake. If I lost the case, my client would be responsible for very sizable amount of money. My client was an obstetrician with more than 25 years of experience. He delivered over 7000 babies during the course of his career.

But there were two problems.

The first problem was the attorney who I was going up against. He happened to be one of the best trial attorneys in NY, if not the country. He was well known for getting multimillion dollar verdicts consistently. He was a fantastic trial attorney.

Imagine this scenario. A kid, only two years out of law school and representing an obstetrician in a brain-damaged baby case with significant exposure to the doctor going up against one of the best trial attorneys in the state. That was pretty wild.

The next problem was actually insurmountable.

In a medical malpractice case here in NY, the plaintiff's attorney, the one who represents the injured victim, is required to show to the jury that they are more likely right than wrong that the doctor violated the basic standards of medical care. He must then show that the wrongdoing was a cause of his client's injuries. All of those things must be confirmed by one or more medical experts to support their claim.

There was no doubt, based upon expert documents we received, that they had medical experts to support their claim.

The “in-house doctor” for the insurance company told me I had a problem.

He told me this case was not defensible. He told me my client did in fact violate the basic standards of good obstetrical care. That meant that I needed to hire a top-notch obstetrical expert in order to confirm the in-house doctor's review or to contradict it and explain how we have a defensible case.

I then copied all of the medical records together with the deposition transcripts and contacted one of the top obstetrical experts in New York City who was a full professor at one of the best medical schools in the city.

A few weeks later I received a call from my obstetrical expert.

The news was not good. I knew my client would not agree with my expert's conclusions. I then decided I needed to bring my client to this expert to have a face-to-face conversation about his review of the records.

Only at that point would my client truly understand what he did was improper and significantly contributed to this baby's permanent and irreversible brain damage.

Two weeks later I met my client together with my obstetrical expert at the medical school. Over the next two hours my expert proceeded to pick apart every single action that my client did during the course of this labor and delivery. The most vivid memory I have of this meeting was when my expert turned to my client and basically yelled at him as if he were child and said “Don't you know what the standard of care required by the American College of Obstetrics and Gynecology at that time? It plainly says....Your actions clearly violated the guidelines described by ACOG. Please explain to me how you can defend your actions.”

My client was stunned into silence.

He knew he was defeated. He knew he couldn't defend himself.

Up until that point, he was defiant. He felt he had done nothing wrong. It was only after having our expert explain step-by-step exactly how he violated the basic standards of good medical obstetrical care did he finally give in to the realization that his actions caused and contributed to this child's injuries.

I'll never forget what my client said to me as we wrapped up that meeting and walked out the door. He turned to me and said “Go ahead, you can settle the case.”

Except I couldn't.

I had to, but I couldn't settle it immediately. That meant I actually had to prepare for trial. I spent weeks preparing and researching and getting ready for trial.

On the day of jury selection I walked into court and me my adversary for the first time. I knew who he was. Everybody in the courthouse did. I introduced myself to him. I can only imagine what he thought as he saw a young baby faced attorney coming in to defend this obstetrician in this significant malpractice case.

Yet my boss gave me clear marching orders.

He told me to try this case. And that's what I intended to do.

Picking a jury with this attorney was a remarkable experience. I can honestly say that I learned more during jury selection at this trial than I had in years reading about it and trying cases. 

Trial began the next day.

My client was there. Sitting in the back. The injured victim's parents were in court also. The plaintiff's attorney and his son were sitting at counsel table.

I knew what I had to do. I had to use whatever leverage I could to get the plaintiff's attorney to realize we could mount a defense in this tragic case. Otherwise, the value of this case would've been significantly higher.

As I sat listening to the plaintiff's attorney make his opening remarks I knew there were a couple of key points I needed to address during my opening arguments if I were to have any leverage in an effort to have meaningful settlement negotiations.

Remember, I knew that our in-house doctor felt this case was not defensible.

I also knew that our top medical expert could not support our defense either. That meant there was no way I could actually take this case to verdict. I knew it. My client knew it. But the plaintiff's attorney didn't know it...yet.

During my opening remarks I could clearly see my client sit up straighter and begin to get that defiant look in his eye again. He was buying into my argument while ignoring the plaintiff's argument. 

After I finished my opening remarks, before the plaintiff's attorney had an opportunity to call my client has his first witness, I asked to speak to the judge in private.

That began settlement negotiations that lasted throughout the entire morning. Those discussions ultimately led to settling the case within the insurance policy limits. That was what I hoped to achieve in light of the fact that this case was not defensible.

As I walked out of the courthouse that day I couldn't help but think that here I was only two years out of law school having just gone up against one of the best trial lawyers in New York and having achieved a relatively successful result for my client. That was a pretty cool day.

Gerry Oginski
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NY Medical Malpractice & Personal Injury Trial Lawyer