Let's get this out of the way right now...

There are many lawyers who don't know how to communicate.

You'd think that a lawyer specializes in communicating.

You would think that an attorney specializes in using the spoken word to get his message across.

You'd think that an attorney is able to simply and easily communicate his thoughts to his client.

Unfortunately, many attorneys simply don't know how to communicate.

Many attorneys continue to use language that is foreign to most clients.

Many attorneys forget that terms of art used by lawyers, judges and legal scholars are not typically found in everyday conversation.

For example, if I tell a client that we have to make a 'motion in limine' prior to trial, do you really think they're going to know what that means?

If I tell a client we have to have a 'process server deliver the complaint', do you really think they will know what this means?

If I tell a client I'm making a 'motion for summary judgment', if they don't have any experience with the legal system before, how could they possibly know what I am talking about?

Let's start with the presumption that attorneys simply don't talk the way their clients do.

Many assume that they know what these legal terms are.

It's the same thing with doctors.

When you ask your doctor what the problem is they give you a nice long detailed explanation using medical terminology.

They assume that you, the patient, knows what they're talking about.

Unfortunately, most of us don't.

When there is a miscommunication between what the doctor or lawyer is saying and what the patient or client is hearing, now's there is confusion.

There are missed expectations.

There is frustration.

There is a lack of understanding.

Let me share with you a few common terms and phrases that we personal injury lawyers use on a regular basis that will help you understand what your lawyer is really saying.

“Objection!” Yells the defense lawyer.

This seems pretty straightforward, doesn't it?

We typically see this in a TV drama or in the movies during a scene at trial.

One lawyer stands up and yells out the word 'objection'.

An objection is an attorney letting the judge know that he does not believe the question should be asked or a piece of evidence should be presented to the jury.

The attorney needs a valid legal reason to raise an objection in order to prevent the witness from answering an improper question or from having some type of document or exhibit introduced into evidence for the jury to consider.

How about the phrase “Objection overruled?”

During trial, when an attorney yells "Objection!" the judge must make a snap decision about whether to allow the question to be asked and allow the witness to answer.

If the judge feels that the question is appropriate, he will allow the witness to answer it by saying "Objection overruled." 

What he's really saying is “Mr. Attorney who raised this objection, I do not agree with you. I'm overriding your objection that just interrupted these proceedings and you can now sit down and allow the question to be asked and the witness will answer the question.”

What about the phrase “Objection sustained?”

This is just the opposite.

In this scenario at trial, an attorney asks the witness a question.

The opposing lawyer jumps up and objects to the question. "Objection Judge!"

The judge makes an immediate ruling and says "Objection sustained.”

What does this mean?

In reality, it means that an attorney has objected to a particular question.

For whatever reason, the attorney does not believe that the question is appropriate and feels that this witness should not be permitted to answer this question.

The judge agrees with him.

The judge recognizes that this is an improper question.

This question is not to be answered.

When the judge says "Objection sustained," he is telling the lawyer and the witness that the question is not to be asked and the witnesses not to answer the question.

That means that the attorney must continue on and ask another question.

You might have heard an attorney who needs to make a motion to the court.

What does that really mean when an attorney makes a “Motion?”

A motion is nothing more than a formal request to the judge to take action.

This formal request is always done in writing.

An attorney who wants a judge to take action must submit specific papers requesting specific action and explaining the legal basis and reasons why he wants the judge to take specific action.

Those papers are known as a motion and must be sent to the opposing attorney as well as the court.

The opposing attorney will then have time in which to prepare his own reply papers that he will then send back to the attorney who is making this request and also send a copy to the court.

In some courts in New York, the judge who receives this written request for action will hear oral argument from the attorneys.

In many courts in New York, the judge will not hear oral argument and simply render a decision based upon the legal papers that are submitted to him from each side.

You should know that there are many different types of motions that can be made.

As a few examples, there is a motion to preclude, a motion for summary judgment, a motion to compel and many others. Each one of these motions simply ask the court to take specific action because one side or the other has failed to do something.

What is a 'motion for summary judgment'?

The defense will typically ask the judge to throw out a civil lawsuit because they believe that we, the people bringing the lawsuit known as plaintiffs, do not have a legal basis to do so.

What the defense is really asking the judge to do is to throw out the lawsuit on a legal technicality.

There are many rules involving what type of proof is necessary in order to submit these papers to the court to evaluate whether or not there is a legal basis to continue forward.

A 'motion to preclude' is request to the judge to prevent the other side from introducing certain evidence at trial.

This will typically happen when the defense has failed to provide us with certain documents or failed to produce certain witnesses during the discovery phase of your lawsuit.

A 'motion to compel' involves the judge giving an order forcing the other side to do something.

Let's say it's a medical malpractice case and I want to question a certain doctor who was involved in treating my client at the hospital. The defense is refusing to produce this witness for pretrial testimony.

I may have to ask the court to force the defense to produce this doctor so I can question him during a pretrial question and answer session.

You should know that many judges require attorneys to request a conference first before making a formal written request seeking the court to intervene.

They will often invite the attorneys into court to try and find out what the problem is and why one side is objecting or refusing to do something.

During this court conference, the judge or the judge's law clerk may indicate that if a witness is not timely produced, there will be repercussions if these documents or this witness has not been produced for pretrial testimony by a certain date.

An outsider might think these are strong-arm tactics to get one side or another to do what they are supposed to do.

In fact, just the opposite is true.

It takes a great deal of time and resources for the attorneys to submit paperwork asking the court to take action when one side fails to do something that they are supposed to do. Then it takes considerable time and resources for the court and the judge's law clerk to research the issue to evaluate it and then render an order on this matter.

In an effort to short-circuit this long, drawn out process, these conferences are often quite effective in getting the attorneys to recognize that they need to follow through and do what they are supposed to do.

If they fail to produce a witness or specific documents that the court has directed them to turn over, the judge has the ability to imply that failing to do so will result in fines, sanctions or even worse, getting your side of the case dismissed.

When a plaintiff's attorney (the lawyer who represents the injured victime) is told by the judge that if they fail to produce certain documents the case will be dismissed, there is an incentive to follow through and do exactly what the judge has ordered.

For the defense, failing to produce a witness or certain documents can have a similar effect.

The judge may imply that if they fail to follow through on the judge's order, he will strike their answer.

This is the kiss of death for the defense if that happens.

Here's what this means...

When a lawsuit is started, we must deliver the lawsuit papers known as a 'summons and complaint' to the people you have sued.

In a medical malpractice case that will often be the doctor and the hospital.

The doctor and the hospital will then have their attorneys prepare answers to the allegations that you have made in your complaint.

Legally, that is known as “an answer.”

If the judge strikes the defense's answer, what that really means is that we have automatically won on liability.

Let me put it another way.

Assume that the Yankees are playing the Mets.

It's a Subway series.

The stadium is packed.

Everyone is looking forward to this great exciting and challenging game.

This game is being played in the Bronx.

It's the Yankees home turf.

The Mets show up.

The Yankees are nowhere to be seen.

Nobody from their team shows up.

Nobody knows where they are.

If the Yankees don't show up, the Mets get an automatic win by default.

The same thing happens with a civil lawsuit involving accident cases medical malpractice cases and wrongful death cases here in New York.

When an injured victim brings a lawsuit and delivers those papers to the people who are responsible for their injuries, if those people who are being sued do not serve a legal answer within a specified period of time, the injured victim gets an automatic win by default.

If the Judge lashes out at the defense for not complying with his order and strikes their answer, it is as if they never served their answer. That means that the injured victim gets an automatic win on liability.

The injured victim's case is not yet over though.

It simply eliminates the need for having to prove that those people were careless and caused your injury.

Your case will then move to a trial on damages.

That will be an opportunity for you to present all of your evidence at trial about yoru injuries and for a jury to decide how much your injuries and losses are worth.

Here's another term you might not be familiar with...

What is a 'compliance conference'?

When you bring a lawsuit, the court wants to be apprised of what is happening on your case every few months.

They require that the attorneys appear in court from time to time to let the judge know what progress is being made in order to move your case forward.

A compliance conference is an opportunity for the judge to hear from the attorneys what has gone on with this case and what still needs to be done.

Are there documents or witnesses that have not been produced?

If there are issues, the judge wants to know about it.

The judge wants to resolve these discovery issues during these compliance conferences.

You may have also heard that when you bring a lawsuit your attorney has to prepare a document known as a 'bill of particulars'.

What is that?

A bill of particulars is a detailed and itemized listing of what you believe was done wrong.

Contained in that document is an itemized list of all of your injuries.

This document is delivered to the defense attorneys in order to give them a clearer understanding of exactly what your allegations are and what injuries you received as a result of their clients' carelessness.

These phrases and terms are used every day by attorneys who handle these cases on a regular basis.

Wouldn't it be nice if the attorneys took the time to teach and explain to you what these phrases mean when they talk to you?

When you speak your attorney, you should have a clear understanding of how your lawsuit works from the very beginning throughout entire litigation process.

The more informed you are the more comfortable you will be knowing what to expect.

Only then will you feel truly comfortable understanding that your attorney is doing everything possible to obtain the most compensation for you as part of your lawsuit.

To learn even more about objections at trial, I invite you to watch the video below...


Gerry Oginski
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NY Medical Malpractice & Personal Injury Trial Lawyer