D. J. Banovitz
D. J. Banovitz, Attorney at Law
It was a medical malpractice trial. I was on trial for two solid weeks.
It involved a failure to properly perform foot surgery leading to the need for further surgery and a permanent injury.
The defense attorney was a standup guy. He was a straight shooter and a very good lawyer. I knew I was in for the long haul when we started the trial.
I told him my client would accept $125,000 to settle the case. He acknowledged that this was a fair settlement number. The only problem was that the doctor refused to settle.
In NY, many medical malpractice insurance policies give doctors the ability to say “Yes” or “No” when given the opportunity to settle a case.
I was trying this case in a very conservative county, in Westchester County.
My podiatry expert came across really well. The defense podiatry expert was someone who testified 3-4 times a year for the past 25 years. He had a bit of experience in the courtroom. During cross-examination I was able to show that he lied. It was a dramatic turn in the trial.
Since the defense refused to negotiate, we had no choice but to take a verdict. My client was resigned to accept whatever the jury came back with.
The defense attorney always starts closing arguments first. He was superb. He made coherent, concise and relevant arguments that attacked my client’s credibility and my expert’s foundation.
Then came my turn.
Before delving into a recap of what various witnesses had testified during trial, I did something I often do when creating video. I told a story. The story was captivating. It was targeted to the jury. It was focused on what the jury wanted to know about my client and the medicine.
The jury was riveted. Not on my storytelling ability, but rather on the facts of the story.
I sat down. I had done my job. The judge then charged the jury with the applicable law here in New York.
DELIBERATIONS BEGIN AND NOW WE WAIT…
The jury ordered lunch and upon our return we were told they had reached a verdict.
The tension was palpable.
In order to reach a verdict, the jury is required to answer a series of questions.
The first question deals with departures from good and accepted medical care. If the answer is yes, they proceed to the causation question which asks whether the departure from good care was a substantial factor in causing and contributing to the plaintiff’s injuries.
If the answer is yes, then the jury must answer how much compensation and damages to award to her.
AND THE VERDICT IS…
On the issue of liability, the jury found that there were departures from good and accepted medical care.
On the question of causation, the jury found those departures were substantial factors in causing my client’s injuries.
The jury awarded my client $1.55 million dollars.
When I turned around to look at my client’s expression, it was one of utter shock and disbelief. That’s when I realized I didn’t have my video camera with me. I wish I’d captured that image to save forever.
After the jury left the courtroom, I shook hands with my worthy adversary. I turned to my client and asked her “How do you feel?”
That was when I wished I brought my video camera to court with me that day. The words that flowed from my client’s mouth at that moment should have been captured to use as a testimonial for now and forever. The words were emotional. They were effusive. They were glowing. They were excited. My client could not control her praise.
As I was listening to her words of thanks, I kept thinking in the back of my mind that I could not believe I did not take my video camera with me and have it ready to go in just this situation. Now I’ll know for next time.