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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Do you know anyone who has been hit by a reckless driver or a careless motorist, shot dead due to mistaken identity, killed due to medical malpractice, etc.? These are examples of wrongful death cases. Generally, these cases are caused by another persons negligence, carelessness, malpractice or inaction. Even though the death is unintentional, it is still the responsibility of the defendant to provide just compensation for the survivors or victims of wrongful death cases.

Prior to a wrongful death incident, you can file wrongful death lawsuits if you are a relative of the wrongful death victims. Winning these civil lawsuits can recover payment for damages to the victims lives. The compensation may cover medical and funeral costs, lost wages including future earnings, lost benefits, lost inheritance, pain and suffering, mental anguish, loss of support or companionship, general damages, and punitive damages. However, the last compensation may not be awarded without additional evidence of malicious intent.

Simply, the immediate family members such as the parents, spouses and children of the deceased can file the wrongful death lawsuits on their loved ones’ behalf because they are almost always eligible to file a claim. Minors may need an adult guardian to take a wrongful death lawsuit to court. Moreover, other family members including the stepparents, grandparents and dependents may also be permitted to file suit in some states.

If you realize you have a valid wrongful death claim, you must first consult one of the experienced wrongful death lawyers in your area. Doing so is very important because a wrongful death lawyer can help you gather evidence, understand the law, complete necessary paperwork, and build a convincing lawsuit against the defendant. In addition, to have an attorney can also help lessen the pain, stress and suffering you may be experiencing due to the incident.

The law states that there is a certain amount of time allotted that a person who has lost a loved one due to wrongful death has to initiate a lawsuit. Family members are usually allowed between one and three years from the time of death to file a claim. If they fail to do so, their claims may be shelved forever. Therefore, if you have lost a loved one because of wrongful death, speak to a personal injury attorney for details regarding the reliability of your case now. After all, your loved ones deserve justice for their untimely death and you too for your misery.

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1. Lawsuits seek to compensate you for your injuries.

a. They compensate you for:
i. Your lost wages, and your future lost wages,
ii. Your medical expenses, both past and future, and
iii. Your pain and the suffering it caused in the past, and for the future

2. Lawsuits do not directly seek to harm anyones reputation.

3. A doctor who is sued will not lose their medical license if the lawsuit is successful.

4. A lawsuit attempts to compensate the injured victim, and at the same time, try to ensure that the same type of bad treatment is not repeated in another patient.

5. A lawsuit is not a lottery.

a. This phrase is often used by defense attorneys during jury selection to remind jurors that their job is not simply to allow the injured victim to hit it big and award huge amounts of unjustified money.

b. A more realistic approach to a lawsuit is for reasonable, full and fair compensation to allow you to recover all of your past and future expenses, and all of your past and future pain and suffering compensation.

6. You dont have to pay any money upfront to an attorney to handle your case. There is no hourly fee.

a. Medical Malpractice and injury cases are generally handled on contingency.

b. That means that the attorney fee depends upon you winning your case. If you lose, the attorney loses as well, and receives no fee.

c. The expenses that the attorney pays to prosecute your case are technically supposed to be repaid by the client in the event the case is lost. However, as a personal matter, I have never asked a client to reimburse me for my expenses if I lose a case. It just doesnt make sense to do so, and in my personal opinion, its bad business. However, some attorneys do require this, so make sure you ask first before you make your decision.

7. Not every attorney has the same experience.

a. Ask your attorney how many years theyve been in practice,

b. Ask the attorney what percentage of medical malpractice or accident cases he handles compared to other types of cases,

c. Ask whether he/she tries cases in the Supreme Court (its the trial level court for New York,

d. Ask whether hes ever lost a case;

i. If he tries cases, and claims hes never lost a caseId suggest either that the attorney is not being accurate, or simply only accepts clear-cut cases that he cannot lose- thats extremely rare.

ii. The majority of trial attorneys will have lost a case from time to time. Unfortunately, its the nature of the beast.

e. Ask whether the attorney you meet with will be the one handling your case on a day to day basis. If not, who will be your attorney? Whom will you call with questions? How quickly will the attorney call me back? How often can you expect to receive correspondence from the attorney about the status of your case?

8. A lawsuit takes time to come to a conclusion.

a. The average time is 2-3 years from start to finish.

9. How often do I have to come into the attorneys office during this time?

a. Once to meet the attorney in an initial meeting,

b. Once to sign documents that start your lawsuit (often this can be done by mail),

c. Once to have your deposition (where you are asked questions by the other sides attorney),

d. At least once to prepare you for trial, and sometimes two or three additional times to prepare you.

10. As in life, there are no guarantees to winning. However, with good experienced counsel and thorough preparation, you stand a much better chance of being fully informed about your prospects and achieving a good result.

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Q: What is a deposition, and will I have to testify at a deposition?

A: First, a deposition is a question and answer session where you will swear (or affirm) to tell the truth. The questions and answers are recorded by a Court stenographer, who will later transcribe all of the questions and answers into a booklet.

If you are bringing a lawsuit for injuries you or your loved one suffered then you will be required to testify about your knowledge of the events and your knowledge of the injuries. You will also be asked questions about how those injuries have affected you (or your loved one) and what treatment you’ve received to treat those injuries.

The attorney(s) for the people you have sued will be questioning you, usually in my office. Sometimes, because of an inability to travel, we can accomodate the injured victim and conduct the deposition closer to their home. Naturally, I will be there with you every step of the way.

Prior to your ‘deposition’ you will meet with me, either on the day you are scheduled to be asked questions, or on a scheduled day before the deposition. During that meeting, I will prepare you extensively about what you can expect will be asked of you by the other attorney(s). By the time we have finished our meeting, you will be aware of practically all the types of questions you will likely be asked by our adversaries.

During the deposition, if you have any questions or concerns, we can take a break and discuss them in the privacy of my office.

Once your deposition session is finished, you can expect to receive a copy of the booklet that contains all of the questions and answers asked and given. You will also receive special instructions about how you must review the transcript for any errors, and what to do if you find factual or typgraphical errors.

On another date, I will have an opportunity to then question the ‘defendant’ (the party that you have sued) to determine from them what happened and why. You are welcome to attend the defendant’s deposition with me, however there are some instances where I will advise against being there, and in some instances I will encourage the client to accompany me.

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Even though it might break up your schedule, it is one of the many obstacles in life that we must face. After you are calm and ready to act, make sure that you are okay. If you have doubts about they way that you are feeling, you need to call an ambulance.

The second call that you need to make has to be to the police. The police will tell you whether it is required to move the vehicles from traffic, and an investigating officer will take statements of the drivers and passengers involved. When the police are investigating the crash, make sure that you ask for a police report for filing a claim.

Even if the cause of the accident is embarrassing and were made by your fault, you need to tell the truth. Sooner or later, your insurance company will find out about what happened, and if they find out that you were lying, this fib will come back to haunt you.

Simply describe what happened to the police and avoid saying Im sorry because that might be interpreted as an admission of fault. The insurance company and the police will determine who the one to blame is. Now, all you have to do is describe what happened.

Another great tip is to carry a single use camera in your car. After all, a picture will be worth a thousand words when you photograph both vehicles and the damage that was caused. When filing a claim, this will make it easier for the insurance company to determine how much money to give you after an accident.

After you contact the police and the ambulance (if needed), you have to contact your auto insurer. Remain calm, describe what happened, and carefully listen to what they have to say.

When speaking to your insurance company, you have to ask what they can do and what you should do know. It is also crucial for you to ask the insurance company claims adjuster for a copy of the complete claim file because of the fact that insurance companies are destroying documents to create a paperless office.

After you had a car collision, hiring a lawyer isnt usually required. If you have been seriously injured during a car accident, hiring a lawyer would be a good idea in order to keep the lines of communication open between you and the insurance company.

Proving that the accident wasnt your fault might require an attorneys assistance, as well. Remember that the help of an attorney isnt required, but it usually helps clear out uncertainties, especially if the accident caused serious injuries.

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