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Frivolous Lawsuits- Are They Fair Topics When Picking a Jury?

How often do we hear the drum beat of "frivolous lawsuits" and "tort reform" from big businesses and from doctors and hospitals?

Look in your newspaper and you're bound to find articles and advertisements trying to beat down the injured victim and their ability to recover compensation.

Importantly, compensation is the right to be paid for something that is owed. It's not a handout. It's not a give-away. It's not a winning lottery ticket, or a slot-machine jackpot. Accountablity is the obligation to account for one's actions. Most people will agree that each person should be held accountable for their actions. In our society of justice, if a wrongdoer is not held accountable for their actions, there is a good chance that person will do that wrongdoing again and again. If we are a society of people who require that individuals take responsibility for their actions, then a wrongdoer is responsible not just for the happening of an accident, but also the injuries that arise from that accident. That's what compensation is about.

When picking a jury in an injury or medical malpractice lawsuit in the State of New York, an attorney representing an injured victim must learn what prejudices or biases a potential jury has, before deciding whether that person is the right juror for that case. How is a lawyer supposed to find out what feelings a juror has about a topic, if he doesn't ask during jury selection?

Some lawyers in New York feel that the mantra of 'frivolous lawsuits' and 'tort reform' puts this topic in the jurors' minds, and creates ill-will toward the lawyer bringing the case. On the other hand, other lawyers (myself included) feel that it is the lawyer's obligation to ask jurors about their feelings toward frivolous cases. I want to know whether these jurors feel that every case entering the court system is frivolous, or whether they can have an open mind and listen to these specific facts, and judge the case for themselves. I make it a point to tell the jurors that if they feel that we have not proven our case, the way the judge explains we are required to, then it is their obligation to turn my client away. However, if we have proven our case, then they are obligated to compensate my client for his injuries.

If a lawyer fails to inquire whether jurors have feelings, good or bad, toward organizations that seek to limit a person's right to recover compensation, it is my opinion that an injustice is being done to the client's case. Why? Because a juror might feel that caps on pain and suffering are acceptable. That juror may not want to award a significant award, simply because it sounds like a large number, even though the victim may be fully entitled to it. If the lawyer doesn't ask about this, how would they ever know the answer? To allow a juror with such a bias onto the jury, without knowing about it, dooms your client's case from the start.

That's why I always advocate asking potential jurors about their thoughts regarding frivolous lawsuits and whether they have a limit on what they could award, before they've heard any of the evidence. The answers always surprise me.

Gerry Oginski is an experienced medical malpractice and personal injury trial attorney practicing in Brooklyn, Bronx, Queens, New York, Staten Island, Nassau & Suffolk. He has tirelessly represented injured victims in all types of medical malpractice and injury cases for more than 19 years. As a solo practitioner he is able to devote 100% of his time to each individual client. A client is never a file number in his office.

Take a look at Gerry's website http://www.oginski-law.com and read his free special reports on malpractice and accident law. Read actual testimony of real doctors in medical malpractice cases. Learn answers to your legal questions. We have over 200 FAQs to the most interesting legal questions. Read about his success stories. Read the latest injury and malpractice news. I guarantee there's something for you. http://www.oginski-law.com 516-487-8207

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