You sued your doctor.
For medical malpractice.
For causing you harm and injury.

Not intentionally, but because he was careless.

Your doctor laughs at your lawsuit.
"I did nothing wrong," he says.
"I didn't cause you any injury," he claims.

He also says "Your injury is not as bad as you claim."
Doesn't that burn you up?
Oh yeah, he also says "By the way, if I caused you harm and injury, you also caused and contributed to your own injury."

Your case is not going to be settled.
The doctor refuses to negotiate.
"Fine, I'll see him at trial," you tell your attorney.

In preparation for your trial, your lawyer pulls out five photographs you had given to him at the beginning of your case.
These photos show the horrible condition you were in while in the intensive care unit at the hospital following surgery.
One photo shows your big gaping bloody wound after it has peeled open a week after surgery.

Another photo shows what the inside of your body looked like during surgery.

The other two photos show you in physical therapy trying to get back your muscle strength.
Your lawyer made sure to send copies of these photos to the defense lawyer.
Your attorney had also sent the defense a letter letting them know that he intended on using these photos at trial to support your case.

In law we call that putting the other side 'ON NOTICE'.
We're giving them a 'heads up' that we intend on using those photos at trial when questioning our witnesses.
If we don't share these photos with our opponent and then only at trial try to get the jury to see them, the defense lawyer would be well within his right to object to the jury seeing those photographs.


Because he's never seen them before.
He's never had a chance to talk to his client, the doctor you sued, about what's in those photos.

He's never had a chance to prepare a defense for what's in those photos.
Nor has he had a chance to object to your lawyer offering those photos into evidence.
It's an ambush.

In New York, we can't ambush our opponent.
If you try to do that, the Judge will get angry and could punish us for not complying with court rules.
Those rules basically say that if we intend on using any medical records, documents, photographs during your trial, we are obligated to provide copies of each of those to our opponent.

This actually makes sense.
Plus it has the added purpose that if these things are compelling and help move our version of events forward, this may entice the defense to enter into settlement negotiations at an early stage. It may help the defense lawyer justify to his insurance carrier why we are more likely right than wrong.

After seeing many courtroom drama movies and shows on TV, you feel confident that your lawyer can use your photos to help the jury understand what happened to you and how your injuries are really bad.

But there's something you don't know...

Let's jump ahead to your trial testimony.
Your case has finally come on for trial.
Two years after starting your case, it's now your time to testify.

Your lawyer has prepared you extensively for the questions he will ask you and the questions the defense will likely ask you.
You are prepared.
You are confident.

You know in your heart-of-hearts that the jury will side with you.
You just know that you're going to win.
But first, you have to get certain evidence in front of the jury.

Otherwise, they won't have that visual in their mind of what horrors you really went through.

You are now called to the witness stand.
You're sworn in by the Court officer.
You swear to tell the truth.

Your lawyer begins to ask you question.
Open-ended questions.
Questions that allow you to explain.

Questions that give you the chance to establish your knowledge, your expertise

Gerry Oginski
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NY Medical Malpractice & Personal Injury Trial Lawyer