You think I'm making this up?

I'm not.

This is a real case.

With a real attorney from the City of New York.

It was a wrongful arrest lawsuit.

The person who had been arrested was now suing the City of New York.

This female attorney from Corporation Counsel's office was defending the case.

This type of nonsense used to happen frequently 25 years ago.

There were defense lawyers who routinely would do everything they could to obstuct pretrial questioning.

Here's how it works...

Let's say you suffered an injury because someone was careless.

Maybe you were in a car that was hit by a careless driver.

Maybe your doctor violated the basic standards of medical care causing you injury.

You now decide to bring a lawsuit against the person who caused you harm.

In New York, you are only permitted to bring a medical malpractice case if a medical expert confirms you have a valid case.

In a car accident case or a slip and fall case you don't need an expert to confirm you have a valid case to start your lawsuit.

Let's say your doctor was careless.

His carelessness caused you injury.

Your injury is permanent.

After confirming that you have a valid case, your attorney starts your lawsuit by preparing and delivering papers known as a summons and a complaint.

The complaint is a series of allegations against your doctor.

The summons is a document that tells your doctor he must now answer the allegations or face legal consequences.

After your doctor receives your lawsuit papers he sends it off to his attorneys.

He has a limited time in which to answer and respond to your allegations.

Here's typically what he will say...

  • Why are you suing me? I didn't do anything wrong.
  • Even if I did something wrong, so did you Mr. didn't do what I told you to do.
  • If I did something wrong, it didn't cause your injury.
  • If I did something wrong and caused you harm, your injuries are not as bad as you claim.

Those are the typical defenses we see in medical malpractice cases here in New York.

At this point, your case has entered the 'discovery' process.

Each side gets to discover information from the other side.

Medical records must be exchanged.

Permission slips to obtain copies of your medical records must be provided.

If you're claiming lost earnings, your W2 forms or tax returns must be provided to the defense.

In addition to exchanging documents you will need to appear in your lawyer's office to be questioned by the attorney for your doctor.

This is a question and answer session that takes place in your lawyer's conference room.

Your lawyer will be there.

You will be there.

The defense lawyer will be there.

But...there is no judge there.

There is no jury there.

There is however a court reporter there to record all of the questions you are asked and all of your answers.

Those questions and answers are then transcribed into a booklet and represent your pretrial testimony.

A few months later, your attorney will have a chance to question your doctor during this same pretrial question and answer session.

You need to know that these question and answer sessions are known legally as depositions.

Lawyers also call them 'examinations before trial'.

The answers you give in your lawyer's office carry the same exact weight as if you are testifying at trial in court.

These depositions can get heated.

Some lawyers can be obnoxious.

Some lawyers intentionally like to push a witness' buttons.

To see how far they can go before the witness starts yelling or screaming.

Some lawyers like to play games.

Others like being jerks to their opponent.

Others think that by objecting repeatedly they are somehow protecting their clients's right better than if they sat there like a potted plant.

Let's look at this scenario, which is similar to the one I described in the headline.

I am questioning the doctor whom you have sued.

He was careless.

Our expert confirms he was careless.

Our expert confirms his wrongdoing caused you injury.

And our expert also confirms your injury is significant and permanent.

Your doctor's medical records don't tell the full story of what happened to you.

There are huge gaps of information.

I intend on asking the doctor key questions about what he did, why he did it and what went wrong.

Importantly, I also intend on asking your doctor whether his care and treatment violated the basic standards of medical care.

And whether his carelessness was a cause of your injury.

I'm permitted to ask these questions.

I'm also permitted to ask hypothetical questions.

If phrased properly, I can often get the doctor to admit that if our facts are true, then his actions clearly violated the standard of medical care.

The doctor reluctantly has no choice but to answer my questions.

Some lawyers don't want their client to answer such damaging questions.

In that instance, they do everything possible to prevent their client from answering.

"Objection! That's an improper question."

"Objection! Don't answer that."

"Objection! That's irrelevant."

"Objection counselor, you know you can't ask that."

"Objection to the way you phrased that question."

"Objection! He's not here to speculate on your hypothetical question. He's a fact witness. Ask him factual questions."

"Objection! That calls for conclusions. That's the jury's function."

"Objection! I don't have to give you a reason. Next question..."

These are real objections made by defense lawyers every day.

You should know that in New York, there are only two instances where a lawyer can tell a witness not to answer a question during their pretrial question and answer session.


The first is if an attorney asks what the witness and his attorney talked about.

So let's say I'm questioning Dr. Jones in your medical malpractice case.

I ask "Dr. Jones, before testifying this morning, did you speak with your attorney about this case?"
"Yes," he says.

"Tell me what the two of you talked about," I say coyly."
"OBJECTION! That's privileged information," the defense lawyer blurts out faster than the blink of an eye.

Here's a plain fact...

It's true.

That conversation is confidential.

All discussions between the doctor and his lawyer are private and confidential.

We call that the attorney-client privilege.

I can ask what they talked about it, but I will never get an answer.

The attorney is absolutely right to tell his client NOT to answer that question.

The second instance where it's appropriate for a lawyer to tell his client NOT to answer my question is when I ask the doctor a question that is so off-the-wall outrageous that it has nothing to do with the case.

It has nothing to do with our claims.

Nor does it have anything to do with the defenses the doctor has raised.

Here's what I mean.

I'm questioning your surgeon.

In his lawyer's office.

We claim your surgeon was careless during your surgery.

We argue that his inattention during surgery caused you permanent injury.

During his pretrial question and answer session I ask your doctor "HOW MANY TIMES DO YOU BEAT YOUR WIFE EACH NIGHT?"

The defense attorney spits his coffee all over the conference room table and does his best to control his fury while at the same time yelling "DON'T ANSWER THAT QUESTION! OBJECTION! THAT'S PALPABLY IMPROPER!"

Where my question is so off-the wall outrageous, the defense attorney would be within his rights to object and direct his client not to answer.

This type of ridiculous question happens more often than you think.

Now you should also know that an attorney is legally obligated to object to a question if it really is an improper question.


The reason is that this is discovery.

By making an objection on the record, the attorney is preserving his right to object at trial.

He's also preserving his right to appeal if he loses the case.

Just because he gets an answer doesn't mean he can use the question or the answer at trial.

That's a separate issue that will arise at trial.

At trial the judge will decide if the question is appropriate and should be answered.

Let's say at trial I asked the doctor how many times he beat his wife each night.

Let's also say the trial judge ALLOWED the witness to answer this horrible question.

Let's say the doctor lost at trial.

His attorney now appeals.

On appeal he argues that this question was palpably improper and never should have been permitted.

The appeals court looks at the deposition transcript and sees that the defense lawyer correctly objected and told the doctor not to answer.

The appeals court looks at the context of the malpractice claim and the doctor's defenses and concludes that the trial judge never should have allowed the doctor to answer this ridiculous question.

They also conclude that this answer likely clouded their opinions of the doctor causing them to rule in favor of the patient.

The verdict is thrown out and the case is scheduled for a new trial.

Getting back to the case that was reported in the NY Post, this City of NY attorney repeatedly objected.

To almost every single question.

It was obstructive.

It was designed to prevent the plaintiff's attorney from getting any useful information.

The attorney representing the person who was wrongfully arrested was clearly frustrated.

An attorney who makes 100 objections during a deposition is outrageous.

200 is worse.

300 is ridiculous.

600 objections during a deposition is unheard of.

She must have thought she was helping the City of New York by making the plaintiff's attorney's job miserable.

You should know that in New York there are also ethical rules that require attorneys to be civil.

I don't know how anyone could have been civil when their opposing attorney repeatedly obstructed questions and made objections for no valid legal reason.

The federal judge who was overseeing this case felt the same way.

He decided that this attorney and her employer, the City of New York needs to pay for such outrageous conduct during a pretrial deposition.

The judge sanctioned the attorney and the City of New York in the amount of $10,000.

That's a lot of money to sanction an attorney.

Amusingly, when a NY Post reporter reached out to this City attorney for comment, she was remarkably quiet and refused to talk.

The article also mentioned that she now must be supervised when representing witnesses at their deposition.

No surprise there.

Here's the original NY Post article "Lawyer Sanctioned for Making More Than 600 Objections!"

Here's the follow up NY Post article "Lawyer Who Objected 600 Times Suddently Has Nothing to Say"

To learn more about the most important question to ask a doctor during his pretrial question and answer session, I invite you to watch the quick video below...

Gerry Oginski
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NY Medical Malpractice & Personal Injury Trial Lawyer