Am I Boring You?

It was the summer of 1991.  I had been practicing law for 10 years and working for a plaintiff’s medical malpractice firm the entire time.  On the day in question I found myself sitting in the conference room of a law firm that was in-house counsel to one of the major insurance carriers for doctors in our state.  I was representing the plaintiff at the non-party deposition of a neurosurgeon. 

            The case involved a woman who was 8 months pregnant when she was involved in a serious automobile accident.  She was taken by ambulance to the Emergency Room of a local community hospital where she was evaluated by physicians of several different medical specialties.  The lawsuit was against the Obstetrician who attended to her in the Emergency Room and admitted her to the hospital and against the hospital.  The Obstetrician had ordered that an electronic fetal heart monitor be connected, but did not require that she be transferred to the Labor and Delivery suite of the hospital.  As the electronic fetal heart monitor tracings clearly demonstrated, the baby became increasingly distressed by what proved to be an occult placental abruption (the placenta separated from the uterine wall depriving the baby of oxygen).  The problem was that the nurses in the Emergency Department were not trained to interpret the tracings, and did not recognize a problem or call for help until the mother’s blood pressure dropped.  When the doctor was called she did not want to come in because she was packing to leave on a trip to her native country the next day to visit her husband.
               The baby was born with completely avoidable profound brain damage due to the lack of oxygen.

            The attorneys for the Obstetrician had served a subpoena on a Neurosurgeon who evaluated the woman in the emergency room for head trauma.  As the attorney asked ridiculous questions about why the Neurosurgeon had not noticed the abnormalities on the tracing, I found myself looking out the conference room window, bored mindless by the proceedings.  I suddenly realized that in ten years, I could not recall the last time I had been present at the deposition of a physician where someone other than myself asked the questions.  Immediately after that realization I was overcome by curiosity and chagrin.  Was it possible, I wondered, that when I am questioning a doctor, the other attorneys are as bored as I am now?

            It was not until January of 2009 that my question was finally answered.  I had just commenced an association with a new firm on the 5^th of the month by selecting a jury on a case that settled during trial.  Now it was the 20^th – inauguration day.  I

was in the office of a law firm who represented an Obstetrician in a case where it was claimed that negligence during the labor and delivery had resulted in paralysis of the child’s arm.

            An attorney for a co-defendant showed up at the deposition with a laptop computer and advised all of those in attendance that she intended to use the computer to watch the inauguration speech of the new President and would take a break during the proceedings for that purpose.

            Fortunately for us, she was unable to obtain a video feed with the internet connection in the office.  She did take a short break to listen to a radio broadcast on a radio at the reception desk, but there was so much static that the rest of us agreed to return to the conference room and resume the deposition.

            At one point during my questioning, I glance over at the young lady’s computer screen.  SHE WAS SHOPPING FOR SHOES!

            During a break, I learned that she was soon to be married for a second time and was shopping for shoes and for favors to give the members of her wedding party.

            Now I know.

“We May Be Adversaries…”

I am in Supreme Court, Queens County.  My assignment is to pick a jury on the first medical malpractice case of my career (my second trial).  The case involves a young man who had a pilonoidal cyst.  He was admitted to a hospital in Manhattan that has long since ceased to exist and surgery was performed to solve the problem.  Unfortunately, he developed an infection of the lining of his heart called the pericardium.

He was treated successfully for the infection at a second hospital.  We are claiming that the surgery was performed negligently and led to avoidable infection.

It is 1982 and I am 28 years old.  My adversary is a white haired gentleman who is the last named (of five partners)  in a law firm that defends a lot of cases in our office.  Up to this point, I have not met a partner in any defense law firm other than acting as an assistant to one of the trial lawyers in our firm. 

When I was still in law school, I accompanied our senior partner on a trial in Brooklyn.  We were assigned to a Judge with a lot of “personality”.  During the testimony of one of the defendants (being questioned by his own attorney) my boss asked me to go out of the courtroom to use the pay phone to call the office about something.

I was proudly wearing a brand new pair of Florsheim ox-blood wing tipped shoes which I had purchased at an exorbitant price in order to look more like the lawyer that I hoped at that point I would soon become.  Unfortunately, the shoes were a little stiff and made a kind of clacking sound on the tile floor when I walked.  As I rose from the counsel table and began to walk out of the courtroom to do as I had been told, my shoes began to make a racket.

The Judge, apparently insensitive to the fact that the jury was in the box listening to testimony, interrupted the proceedings to address my boss.  “Mr [Plaintiff’s lawyer], tell your associate to get rid of those clod-hoppers.”

Of course the comment was greeted with a fair amount of laughter.  Of course the most expensive shoes I had ever purchased or owned were never worn again. 

That experience, of “second-seating” a trial lawyer was effectively how young trial lawyers apprenticed in those days.  It was in that setting only that I had met a partner in a defense firm prior to trying my first medical malpractice case in Queens.

When the case was called, both my adversary and I answered ready and were told to go to the jury part and select a jury.  As we were leaving the courtroom together, this venerable gentleman introduced himself to me and said “We may be adversaries, but that doesn’t mean we can’t be friends.”

I have thought many times over the years how fortunate I was to have started out on my career by having tried a case with a man such as he.  It was a great lesson which I never forgot; that we are professionals; we do our best to represent our clients zealously in the courtroom, but it need not be personal.  We can and should conduct ourselves with dignity and integrity, and then there is nothing to prevent us from admiring or even liking and respecting one another when we leave the courtroom.

I analogized it once in a Chapter I wrote to an episode of the roadrunner cartoon.  The roadrunner and Wiley Coyote are walking together wearing hard hats and carrying lunch buckets.  They are having a friendly conversation.  They pass through a gate and go up to a shed and pass their time cards through a clock to “punch in”.  From that point on, it is a normal episode of the cartoon with the Coyote trying his utmost to kill or capture the roadrunner, who manages to outrun and outwit his adversary at every turn, even making him the victim of his own boobytraps.  Suddenly, a five o’clock whistle blows.  The two of them return to the shed, “punch out” and leave together talking to each other once again as friends.

As lawyers we learn to disagree without disliking or disrespecting each other.  If only that were true in all other aspects of life where people disagree with one another!

Damages Are Not Meant To Be Funny

This summary is not available. Please click here to view the post.