It was a medical malpractice trial.

She was badly injured by her doctor.

Here in New York.

She believed, deep in her heart, that her doctor violated the basic standards of medical care.

This was confirmed by a board certified medical expert.

This expert confirmed that her doctors' carelessness was a cause of her permanent injury.

It was two years since she started her lawsuit.

Two years of hard-fought litigation.

The doctor's attorney refused to acknowledge they did anything wrong.

They refused to accept her claim that the doctor's improper medical care caused her injury.

They also refused to accept her claim that her injuries were really as bad as she claimed.

She and her attorney felt they had a good strong case.

Her attorney prepared the case for trial.

He met with and prepared all of his medical experts.

He prepared all of his trial exhibits.

He prepared multiple legal briefs for the judge.

He prepared a list of different laws he wanted the judge to explain to the jury at the end of the trial.

Legally, that's known as 'requests to charge'.

He prepared his cross-examination of the different doctors who would be testifying for the defense.

He prepared his opening argument.

Believe it or not, he also began preparing his closing argument before trial even started!

He had been preparing this closing argument from the moment he first met his injured client.

There was one problem though.

It was a big problem.

It was a HUGE problem.

It was something that could easily destroy her case.

It could destroy her credibility.

It could destroy his credibility if he didn't address it.

Want to know what it was?

It was a bombshell...

Not literally, but figuratively.

It was something that his client did in the past.

It was something that was not pretty.

It was morally reprehensible.

It was something she was caught doing.

It was something she paid a hefty price for.

The punishment for what she did deprived her of living a free life for many years.

Yes, she was incarcerated.

Yes, she was in jail.

Yes, she was in jail for ten years.

This was not some petty theft we're talking about.

This was worse.

Much worse.

She took part in a bank robbery.

A long time ago.

She had a weapon.

She had a mask.

The weapon was loaded.

She intended to use it if needed.

Thankfully, it wasn't needed.

Thankfully, she didn't use it.

She had a partner.

A partner in crime.

He was also caught.

Along with her.

The moment they stepped out of the bank.

They were both arrested.

They were convicted.

Of armed robbery.

He went away for twelve years.

She got ten years.

In prison.

Not exactly the most upstanding citizen.

Fast forward fifteen years since she was so stupid.

It turns out her gynecologist failed to timely diagnose her breast cancer.

Now she has advanced metastatic breast cancer.

Now she needs bilateral mastectomies.

Then she'll need chemotherapy.

Don't forget radiation therapy.

Her prognosis is bad.

Her life expectancy is very limited now.

She's upset.

She's frustrated.

She believes that her gynecologist failed to recognize the signs of her breast cancer.

She believes her doctor failed to send her for a breast sonogram.

Her doctor failed to send her for a mammogram.

She also failed to send her to a breast surgeon for a breast biopsy.

The attorney representing the gynecologist says this was a rare, fast-growing cancer.

The doctor's attorney says the patient never complained about a breast lump.

The physician's lawyer says the patient was not compliant and didn't listen to her doctor about returning to the office when told to do so.

They also claim that the time delay didn't make a difference in her outcome.

Let's take a step back here for a second...

Here's a convicted felon who is trying to obtain money as a form of compensation for her gynecologist missing her breast cancer.

The defense argues they did nothing wrong and even if they did, they blame the patient for most of it since she was not compliant with her doctor's instructions.

Isn't there a big elephant in the courtroom?

What do you think would happen if the patient's attorney tried to hide the fact that his client was a convicted felon?

Do you think the defense attorney wouldn't pounce on that?

Imagine the opening argument by the defense lawyer if I ignored this client's past history...

"Ladies and gentlemen...there's something you need to know about right now. Immediately. It's something that establishes beyond a shadow of a doubt that Oginski and his client are liars. It's something that will establish immediately that they're being less than truthful with you about the claims they're bringing in this case.

It has to do with Mrs. Jones. Did you know that she's a bank robber? Did you know that she's a convicted felon? You didn't? How remarkable! Did Oginski simply forget that important piece of information? Did he intentionally hide that from you for a reason?

Yes folks. Mrs. Jones is a convicted felon. She robbed a bank. With a loaded weapon. She intended to use that weapon if needed. She stole money from a bank. Along with her partner.

As she stepped outside the bank, she was caught. She's a thief. A convicted thief. The testimony will confirm that. She's lost her right to vote. She lost ten years of her life in a maximum security prison because of what she did. Now she's coming in here claiming she's entitled to money because of something my doctor did?

Nonsense! She cannot be believed. Her attorney cannot be believed..."

The defense lawyer will destroy her credibility during opening arguments. He will destroy my credibility on opening argument if I hide this damaging bombshell.

You can't hide this fact.

You can't run from it.

The defense will learn this information.

They will do everything to use it against you.

But there is a way to deal with it.

There is a way to use it to your advantage.

There is a way, strategically, to explain to the jury why this is irrelevant.

You should know that during a medical malpractice lawsuit, during the pretrial discovery phase, the injured patient will be questioned by the doctor's attorney.

This is done in an attorney's office.

In the conference room.

There's no judge present.

There's no jury present.

But there is a court reporter present to record all of the questions being asked and all of your answers.

Those questions and answers are then transcribed and put into a booklet known as a transcript.

Even though this pretrial testimony is done informally, it still carries the same exact weight as if you are testifying at trial.

During the course of this question and answer session, known legally as a deposition, the defense attorney will ask you an innocent-sounding question...

"Mrs. Jones, have you ever been convicted of a crime?"

For most injured patients bringing a lawsuit against their doctor, the answer is 'no'.

For a few, the answer is 'yes'.

There are some people who believe if they admit to having been convicted in the past it will destroy their medical malpractice claim. They think the defense lawyer will never learn they were convicted and instead of telling the truth, they tell a little white lie.

"No, I've never been convicted of a crime," you say.

Well, I will tell you that little white lie will destroy your case.

That little white lie will destroy your credibility.

The fact that you lied during your pretrial testimony is more damaging than the fact that you are a convicted felon.

Keep in mind that in a civil lawsuit your CREDIBILITY is EVERYTHING!

If you have no credibility, the jury will not believe you.

The jury will not believe your claim of wrongdoing.

The jury will not believe you were badly injured.

The jury will think you're trying to pull a fast one on them.

All because you lied about something so simple.

All because you lied, thinking the defense attorney would never find out.

Guess what?

The defense attorney knows the answer to the question when he asks you if you were ever convicted, during your pretrial question and answer session.

He will have done a background check on you.

He will know if you've ever been convicted of a crime.

He asks you that question to see if you will admit or deny it, while you testify under oath.

If you admit it, he moves on to the next topic.

If you deny it, he will still move on to the next topic and make a note of it to use it at trial.

Most defense lawyers who catch a litigant in a lie during pretrial testimony will not confront them with their lie.

Instead, they prepare a trap for trial.

Instead, they know the impact this will have on the jury at trial.

This lie will often destroy you and your entire case.

Once you are trapped in this lie, it's almost impossible to get out.

However, here are two simple but very powerful strategies to prevent these problems from arising during your lawsuit...

First, if you have something in your past that you are not proud of, you MUST tell your attorney during your very first meeting with him.


If you hide this from your attorney, you will blindside him.

He will likely not learn about your awful past until the time of your deposition, months into your case.

By then, it will be too late to help you.

By then, the damage will be done.

By then, you will have destroyed your case all by yourself.

You will have perjured yourself.

That means you have lied.

That means you can be held in contempt of court.

That means you open the possibility that the judge can refer you to the district attorney's office and recommend criminal charges be brought against you for perjury.

That means your attorney will have no choice but to withdraw as your lawyer.

That means your case will go down the tubes.


Because you thought you knew better.

You thought the defense would never find out.

You thought you were smarter than the lawyer on the other side.

Turns out you were wrong.

Very wrong.

By hiding this important fact from your lawyer, you destroyed your own case.

Even if your case truly has merit.

Even if you were severely injured because your doctor was careless.

Doesn't matter.

You see, at trial, the jury is permitted to disregard some or all of your testimony if they believe you have lied about one thing. It doesn't matter what you lied about. 

The judge, at the end of the trial, instructs the jury on what the law is in New York for your case.

The defense attorney will ask the judge to explain to the jury about a legal instruction with a crazy Latin name called "Falsus in Uno."

What that phrase means is that if you have lied about one thing, the jury can assume that you will have lied about other things as well. The jury is permitted and within their right to disregard some or all of your testimony.

During closing arguments, the defense lawyer will attack you and your case and show that you are a liar.

He will show that you told a little white lie.

He will show the jury that if you lied about something so simple and easy to find out, then you must have been lying about other things in your case as well.

Try explaining that away to a jury who is now sitting there with a scowl on their face and arms crossed and locked.

That's not good for you or your case.

Let's get back to the two simple strategies that will prevent you from ever being the situation.

After telling your attorney about your dark past during your first consultation, your attorney can now begin to develop strategies on how to address this during the course of your litigation.

The first strategy is that when you are questioned by the doctor's attorney during your pretrial question and answer session, you must tell the attorney the truth when he asks if you have ever been convicted of crime.

In fact, you must always tell the truth, even if you think the truth is damaging to you and your case.

The reality is that is it is not as damaging as you believe it to be.

Rather, you might have the perception that your past will hinder your opportunity to obtain full and fair compensation for your injuries caused by this careless doctor.

As long as you acknowledge and admit that you were convicted, you're on the right path to having the jury focus on the key facts of the case rather than on something that has nothing to do with your claims of improper medical care.

To briefly recap...

At your very first office visit with the attorney, you MUST tell him about the skeletons in your closet.

Now, he can beging deciding how to use that information.

Next and most important is how your attorney uses this information at trial.

When you start your trial, the judge gives the jury brief preliminary instructions on how the case will proceed. 

After that brief introduction, he will turn to me, the plaintiff's attorney and say "Mr. Oginski, you may proceed..."

I then get up and start my opening remarks.

You should know that opening argument is not the same as closing argument.

There has been no evidence presented yet.

There has been no testimony yet.

There are simply facts that we intend to show are more likely right than wrong.

It's my opportunity to tell the jury what the facts are and what the evidence will show.

It's my chance to tell the jury what our claims are.

It's my chance to tell the jury that this doctor violated the basic standards of medical care causing my client permanent injury.

It's also my chance to admit something bad.

It's my chance to confess to the jury.

It's my chance to tell them, in a simple, straightforward fashion, what you did in your past.

I have a golden opportunity to take the wind out of the defense lawyer's argument by telling the jury about it first.

I have the chance to tell the jury what happened in a matter-of-fact fashion.

I will tell the jury and then explain in detail how horrible those facts were.

I will tell them that what happened in the past has nothing to do with the claims we are making in this case.

I will be upfront with the jurors.

I will not hide this from them.

I will not stick my head in the sand hoping the defense lawyer will not address it.

I will not pretend it didn't happen.

Instead, I will own it.

My client will own it and accept responsibility once again.

Once that happens, it really becomes a non-issue.

There's no longer much drama.

The bombshell is out.

The devastating news is out.

To learn what happens when the jury catches you in a lie at trial, I invite you to watch the quick video below...




Gerry Oginski
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NY Medical Malpractice & Personal Injury Trial Lawyer