The Court Of Public Opinion

Well, it finally happened. I’d been Googled. Not by my friends, but by my adversaries in a medical malpractice wrongful death case.

Their googling apparently caused apoplectic seizures that rippled through the defense firms representing the doctors in my case that was marked final for trial on April 10, 2006 in Kings County, here in New York.

The first inkling of trouble was a telephone call by adversary #1- someone who up until that time, I thought I had a good working relationship with. Gerry, I want to give you a heads-up about an order-to-show cause that you’ll be getting shortly, he said. What’s it about? I asked.

Your website. We want you to shut it down for the duration of the trial, he answered. What are you talking about? I asked incredulously. What could my website possibly have to do with a trial that we’re supposed to start in one week’s time? I stated, having difficulty controlling my tongue and the tenor of my voice.

We think that potential jurors might be prejudiced if they read the material on your website, and that’s why we want you to shut it down, he responded.

Let me digress a moment. On my website which currently gets over 3000 unique visitors per month, I have over 65 articles that I have personally written, I have 200 frequently asked questions, I have 213 links to other resources, and over 285 news articles about verdicts and settlements across the country. In addition, I have posted deposition transcripts of doctors in cases I have handled that are de-identified. I have removed all identifying features in each of the depositions I have posted. The reason I posted these transcripts is to show people what I do, how I do it, and it makes for interesting reading.

If one Google’s my name, Gerry Oginski you will get 953 sites that refer to me and my website, my blog and other writings I’ve posted online. If you take off the quotations, you’ll get 12,500 references to my name. If you do a Yahoo search with the same name in quotations, you will get almost 8,000 sites that refer to my name.

The original Google search that my adversary performed Anesthesia, wrongful death and Oginski revealed his client’s deposition in the very case we were about to try. This was the only posted deposition in an active case. Even though it was de-identified and you could not determine who it involved, he asked me to remove it from my site for the duration of the trial because of the possibility that a juror could find the de-identified transcript while doing a search and read it during the trial. After much debate, and knowing that there is no case law on this topic anywhere in New York, I agreed to voluntarily remove the deposition from my site. You would think that my willingness to be courteous and professional to my adversary would have ended this issue. It did not.

He was still insistent that my website be shut down, because there was material on my site, That if viewed by a potential juror, would prejudice that juror, he wrote in his motion papers.

On April 10, 2006, when we appeared in the Medical Malpractice Trial Ready Part in Brooklyn, NY, my adversary was insistent that the Court shut down my site. He referred to three articles I wrote as being somehow prejudicial: Insurance Companies and how they protect their profits, 5 Typical Defenses in a Medical Malpractice Case, and Medical Malpractice: 10 Reasons Why Most Victims Won’t Recover a Dime. The last article he cited because I include discussions about jurors biased by the insurance industry, the plaintiff’s inability to hire good qualified experts, and the basic premise that ‘juries like doctors’.

Defense counsel’s arguments were, impressively, based on total speculation. He argued that a potential juror might ignore the trial judge’s instructions not to discuss the case with anyone, that he might go online and perform a search about the attorneys or the topic involved in the case, that he would actually find information about the case, and that he might be prejudiced by reading such material. He wrote:

We live in the ‘Google’ world where nearly everyone has access to the internet and many people perform internet searches as a means of obtaining information. Jurors, in fact, often attest to a desire to ‘research’ the issues or attorneys on the internet. As a result, it is possible or even likely, that at least one juror (or prospective juror) will review the above-describe prejudicial materials on the plaintiff counsel’s web siteWhile an admonishment could be given by the trial judge, it is submitted that that would more likely result in an invitation to go to the aforementioned web site and provide a road map on how to get there.

He also argued,

the limitation on free speech must apply to written statements disseminated by plaintiff’s counsel in a medium known to be viewed by prospective jurors, such as the website of plaintiff’s counsel in the very matter set to be tried before them.

My argument was simple:

1. Shutting down my site would have absolutely no effect on a juror intent on ignoring the Court’s instructions from doing online research,

2. All of the material posted on my website is freely available on the internet, and was originally posted on the internet first, and then added to my site later,

3. If the Court felt compelled to shut down my site, then logically, it would have to shut down every lawyer’s website (including all defense attorneys) in every case that came on for trial in every County in the State of New York. (The Courts’ response was, I think, facetious, Maybe I will have to shut down every lawyer’s site)

4. Shutting down my website would not only be unconstitutional- a judicial lockdown of my right to free speech, but would create undue hardship financially since I receive all of my direct cases from my online presence,

5. The information posted online is truthful and provides consumers with abundant information they need to know before they hire an attorney,

6. The Courts’ curative instruction to any potential juror would be all that was needed to address potential extracurricular research on the attorneys or the topic involved in the trial,

7. A decision that required me to shut down my site, regardless of the duration, would have significant implications in the legal community, and would simply make bad law.

The Court initially wanted to have the trial judge address this issue in chambers, before starting the trial. However, with persistent urging by the defense, he relented and agreed to render a decision on this novel issue 60 days after receiving opposition papers. Because of this personal attack on my website, the trial would not proceed forward until this issue was resolved.

UPDATE

With anticipation building, and only two weeks to go before the Brooklyn Trial Judge rendered a decision on whether to shut down my website, I settled the underlying malpractice case.

With a window of opportunity quickly closing, my adversary finally got serious about settlement negotiations. I’m happy to report that we settled this wrongful death case just before the Court rendered a decision.

This means that the Court no longer has the opportunity to render a decision about whether to shut down my website. Unfortunately, this does not prevent defense counsel in other cases from making the same kind of ridiculous argument as was made in my case.

The argument was absurd- that potential jurors would ignore the trial judge’s instructions and go online to do research about the lawyers and the medicine involved in the case. The defense felt that this would somehow prejudice a potential juror from fairly deciding the case. Nonsense. We are all inundated with information every day, whether by newspaper, radio, advertisements, magazines, and the internet, so that selectively shutting down one website would, in my opinion, be meaningless. This was just another attempt to delay a meritorious case. What will defense attorneys think of next?

I read an online comment recently by an attorney who read what was happening with my website. He suggested that the lawyers should each have the ability to shut down three websites of their choosing, instead of having three choices to remove jurors during jury selection. Excellent idea!

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Small claims court is a department that handles personal disputes, usually when someone owes you money but refuses to pay. Often however it is to collect remuneration for damages. The claims are generally for sums less than $2500 dollars.

In order to file a claim, you must fill out a Plaintiffs Claim and pay between 30 and 75 dollars depending on the size of the claim. The clerk will provide a case number, and time and date of your trail. Dont wait too long to file a claim. Your right to sue over an issue only lasts 2 to 4 years. The next step is to serve the lawsuit, or to present the defendant with the lawsuit. This must happen at least 15 days prior to trial. Anyone adult except the plaintiff may do so. Many people hire someone from the Sheriffs Department.

Although you may consult with an attorney about the trial, an attorney is not allowed to represent you at the trial itself. You must make sure to prepare all evidence yourself, such as bill, receipts, contracts, photographs or witnesses to substantiate your case.

It is crucial to note that you must share all of your evidence with both the court and with the defendant before trial. If you have evidence that was not shared with the defendant, it will be inadmissible in court.

Remember to be polite, dont interrupt, and speak only to the judge. If the judge finds in your favor, you will have many avenues to collect, but remember that the defendant has 30 days to appeal the decision.

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Becoming a lawyer in todays society is a noble goal to undertake. There are many jokes about lawyers that we all have heard, but the truth is, it takes a lot of work to become a an attorney. Pursuing a career as an attorney allows one to experience the gift of helping people in ways that most people are unable to. If your heart ever goes out to struggling individuals legal battles, then this career may just be for you.

To get into law school, you must first have an undergraduate degree from an accredited institution. Unlike Medical school, there is not really a certain type of major that is required at this time of writing. Some may major in pre-law which focuses on the government, criminal justice and aspects of politics. But it would be perfectly fine to major in math or history. As long as your GPA is high enough to get into the college and your score well on the LSAT, then you increase your chances of getting into this field. Depending on what type of law you decide to study and the school you go to, requirements for your GPA will be different. For example, in you decide to go to Harvard Law School; your competition will be fierce because most of the people applying will have 4.0 GPAs. On the other hand, if you decide to go to a law school in Hawaii, the GPA requirements will be lower because most people will be trying to go to more recognized law schools. This is not to say that non Ivy League schools will not offer a wonderful education for any individual who is focused and determined. For example, the late Johnny Cochran did not got Harvard or Yale, but received his law degree from Loyola University School of Law in 1962. In 1977 he was named Criminal Trial lawyer of the Year. Cochrane later became one of the most sought after attorneys of his time.

Another point to mention is cost. Cost varies greatly depending on the affluence of the school. The tuition at Harvard is quoted on their website at 35,000 per year with an estimated 21,000 a year for living expenses. A law school in Hawaii is around 10,500 per year. Idaho is reported as one of the lowest with tuition cost of 6,700 per year. However, with inflation these costs are increasing each year. The Law college experience lasts three years currently. After this opportunities open up for Private Practice, Corporate Law, Military and teaching, just to name a few. This is an immense field and again, can offer some very rewarding experiences in your life if you choose to pursue this career.

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We are all aware of the current compensation culture that exists in the modern world, but are we all aware of the financial impact it is having on the regular taxpayer, the NHS, Councils and Authorities across the land?

Some people would like us to believe that we, the public, are responsible for the financial burden on public funds due to the growing trend of pursuing personal injury claims. It is true that the volume of claims has more than doubled in the past four years or so, but it is the actual cost of the claim that is causing most of the problem.

Funnily enough though, the actual amounts awarded for compensation have not really changed much over the years, but the amount that the legal professionals can charge for their services has.

The government actually pay the solicitors their costs in compensations claims. Some more underhand claims handlers have been known to actually take a percentage of the money that they win for a claimant, so we can see who the actual winners are this instance.

Is it any wonder that on the television there is company upon company pleading to handle your claim for you, when they can charge through the roof and get duly paid by the Government? Ironically, more often than not, the legal and administrative costs exceed what is actually paid to the victim.

If you look at is this way, In the NHS the annual cost of clinical negligence has reached an unprecedented 446 million a year according to Tory Health Spokesman John Baron, of this money a percentage is paid to victims for compensation, and a very large percentage of this money is paid for the legal costs involved. This money is taken directly from the tax payers pockets and should be better used to pay for services, staff, equipment and operations.

So what can be done about it? There have been many suggestions from legal advisors put forward to the Government, but it is far easier for the Government to blame the public for claiming, than blaming themselves for poor legislation.

In an article by business editor Duncan Brodie the following observations were made:

The real problem is not that so many people are engaging in litigation but that, from time to time, courts have found in favour of claimants whose weak, and sometimes downright frivolous, cases ought to have been struck out The real responsibility for the compensation culture lies, therefore, not so much with the public for seeking compensation as with the state for encouraging and even commissioning action where the degree of culpability is such that the case should never reach the court room. The answer lies in the application of common sense, by the Legal Aid authorities, by the CPS and, ultimately, by judges.

Very well said.

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My mom told me she has a living will. That way she’s going to avoid probate

I can’t tell you how many times I’ve heard this when a new person finds out I was a living trust lawyer.

They go on to say, She got one of those forms at the seniors’ center. You know, the one she can fill out herself. They even witnessed it for her.

I hate it when this comes up, because I have to set the record straight, I have to let the person know that a living will and a living trust are two different instruments that serve two different purposes.

One, the living will, is your statement that If I am terminally ill or mortally injured (I’m using simple language here to get the point across), then don’t hook me up to life support that will never return me to life. It’s the issue that’s currently being fought in Florida, with Governor Bush signing a law to keep a woman alive over her family’s wishes and a court ruling.

Her living will has nothing to do with avoiding probate. It is a health care document. Really it should be called a death desire, but our society can’t handle that bluntness.

A living trust, on the other hand, IS a probate avoiding document.

Basically, probate is used to transfer property you own when you die. If you have a will, your executor uses the probate court to carry out the terms of your will. If you die without a will, the laws of your state has statutes that describe where your property goes and who is in charge of getting it there.

So, if you don’t own any property when you die, then (generally…there are always exceptions) there is no need for probate.

This is where the living trust steps in. It called a living trust because it is created while you are living.

When you create a trust, you transfer title to your property to the trustee of the trust. You, as an individual, no longer own the property.

So, if you die, no probate is needed (remember, there are always exceptions), since YOU don’t own the property. The property is owned by the trustee of the trust. The trust instrument instructs him/her on what to do with the property upon your death.

A living trust is a LOT more complicated to set up and maintain than a living will. They accomplish different tasks.

So, when you hear that a loved one has a living will to avoid probate, it might be smart to ask a few questions.

Good luck and until next time,

Phil Craig

P.S. Feel free to forward this on to any friends.

Phil Craig, All Rights Reserved

Phil Craig is a licensed attorney and entreprenuer. He started practicing law at age 25 in 1979. He does not take on any more clients, but is advisor to some of the biggest names in the internet world. He shares his knowledge gained over the last 25 years at his Living Trust Secrets newsletter site: click here=========>http://www.LivingTrustSecrets.com

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Terminating (Firing) an employee that works for you can be expose you to legal risks, but there are things you can do to minimize those risks.

Make sure to keep good documentation on employees, such as job responsibilities. You should have performance reviews and save copies of their evaluations. Your company likely has a discipline policy, and it needs to be applied consistently and have warnings documented.

Consulting an employment attorney before the termination can be a good way to help insulate you from legal troubles. They can also help you prepare for a discrimination lawsuit if one is likely to occur. If they do sue you for this, you will need to prove that the firing was performance related rather than to do to some personal factor such as race, religion, or age.

Plan everything ahead of the meeting. It might be a good idea to write a termination agreement for the employee, allowing some benefits for post-employment insurance of health care.

Evaluate the employees access to company property and information. Document whatever physical items they have of the companys. It may be necessary to change passwords and locks.

Hold the meeting in the early morning or late afternoon, and be sure to explain why they are being terminated and answer any questions. Make sure they sign any documents needed and return company property.

Dont embarrass the employee by telling others in the company the specifics of the firing, and make sure not to give them bad references as this could result in legal exposure.

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