It's a medical malpractice trial.

We cannot settle this case.

Your doctor refuses to acknowledge he did anything wrong.

Your doctor refuses to take responsibility for your injury.

Your doctor claims you caused your own injury by delaying your treatment.

The defense refuses to negotiate.

They won't pay a dime.

They want to go to verdict.

They want a jury to decide if we're more likely right than wrong.

They've been a pain in the ass throughout this lawsuit.

We say blue.

They say red.

We say it's 10:00 a.m., they say it's 1:00 pm.

We say yes, they say no.

This is the tone of the litigation.

Everything we do is a battle.

Nothing is agreed upon.

Nothing is simple.

Even the most basic legal traditions are trampled and refused.

We want the scheduling conference to be held in the morning.

The defense wants it held in the afternoon.

We want a senior trial attorney to appear for the defense.

They say they'll send an inexperienced junior associate.



We ask for a courtesy to reschedule a conference without needing to show up and ask for it in person.

The defense demands we show up just to ask to reschedule.

Get the picture?

This has nothing to do with the merit of your case.

It has to do with the defense lawyer and the mentality of the defense firm.

They're obnoxious.

Remember though what goes around, comes around.

They'll get theirs.

At some point.

The judge sends us out to pick a jury.

Jury selection takes a day and a half.

We've picked six jurors from the community.

People who have told us they can be fair and impartial.

We have also picked three alternate jurors.

People who are extras who will step into the shoes of a main juror if one of them cannot continue with the trial.

Jury selection was not that bad.

The defense lawyer was not overly nasty or obnoxious.

There were not too many fights in front of the jurors where we needed to speak to the judge in charge of jury selection.

There were no big legal issues that required the judge to intervene.

Each of us used up our three opportunities to remove jurors whom we did not like.

Legally, that's known as using our peremptory challenges.

Neither of us asked for more.

After all the jurors were selected, we notified the trial judge we were ready to begin the trial.

The next morning, everyone has been directed to be in the courtroom and trial will start.

The jury is brought into the courtroom.

The attorneys are sitting at counsel table.

The judge walks in and everyone stands.

The judge sits down and commands everyone to sit.

As a brief formality, the judge turns to me and says "Mr. Oginski, is the jury acceptable?"

"Yes, they are Judge," I answer.

The judge then turns to the defense lawyer and says "Defense counsel, is the jury acceptable?"


I do a double take at the defense lawyer over my right shoulder.

It figures.

He's just thrown a wrench into the trial and we haven't even started yet.

The jury doesn't know what he just did.

The jury gets the sense that he just dissed them.

The judge's expression goes from happy to annoyed in a split second.

He calls both of us up to the bench.

He covers the microphone with his hand and demands an explanation from the defense lawyer.

The defense attorney now comes up with some cockamamie legal excuse about why the jury is not acceptable.

He claims that I was throwing off jurors who were ethnically similar to the doctor you sued.

He says I can't do that.

The judge asks him why this wasn't addressed with the jury selection judge yesterday when this supposed injustice was occurring.

The lawyer sidestepped the question without answering it directly.

"I didn't give it much thought as it happened. It was only when I got home and thought about who Oginski excused from the jury that I believe he violated my clients' rights by removing certain jurors."

This was bullshit.

I didn't remove anyone for ethnic reasons.

There was no pattern here.

There was no abuse here.

Everything I did during jury selection was on the up and up.

The judge wants to inquire further.

"Send the jury out," he tells the court officer.

Now, he's going to put this entire conversation and argument on the record.

He wants to make sure this legal argument is recorded in case one attorney needs to appeal his decision or the jury verdict.

Once the jury is out of the courtroom, the Judge turns to the defense lawyer and says "What's wrong with your jury counselor?"

"I believe Mr. Oginski systematically removed all Indian jurors who have the same ethnic background as my client, an Indian physician."

"The three jurors he removed using peremptory challenges were all of Indian background."

I pull out my notes from yesterday's jury selection.

It's a good thing too.

I write notes about each juror.

Short little reminders so I can see who they are, where they come from and what they do for a living.

The defense is now arguing that every juror of Indian background deserves to sit as a juror on this medical malpractice case.

I now show, one at a time, that the three jurors I removed, without needing to give any reason whatsoever had nothing to do with race or ethnicity.

One was removed because of his belief about lawsuits.

The second one was removed because a family member sued and lost.

The third one was removed because I didn't like the way he looked at me. I didn't like his body language.

You see, these peremptory challenges are private and the reasons why we used them don't have to be disclosed to our adversary.


If the lawyer believes that we are excluding a certain group of people or race.

That's legally known as a 'Batson' challenge.

That's what this obnoxious defense lawyer was doing right now.

He was insinuating that the reason why I excused these three people was solely to keep off any Indian juror.

That was untrue.

If it was, why did I allow juror #2 to remain?

He's Indian.

I could have removed him in the first round, but chose not to.

The judge asks my opponent if he has any other reason why the jury is not acceptable.

"No Your Honor," he says.

The judge looks at the defense lawyer in the eye.

Then, he gives his order.

"It is the opinion of this court that Mr. Oginski did not exclude those three jurors on the basis of race or ethnicity. Your argument lacks merit and the fact that you made no effort to object or bring this issue to the attention of the court at the time it happened suggests that the jury was appropriately selected yesterday.

The fact that you have waited till opening arguments to voice your objection confirms that your argument lacks any merit.

The court finds the jury to be acceptable. Officer, now BRING IN THE JURY and let's get this trial started!"

To learn what happens when an attorney makes obnoxious comments during opening argument, I invite you to watch the quick video below...



Gerry Oginski
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NY Medical Malpractice & Personal Injury Trial Lawyer