Seidemann: A dash of poetic justice

He’s not even Jewish — Irish Catholic I believe — but he considers himself to be my youngest daughter’s godfather. In fact, they have never met. Oh, he’s seen pictures; I make sure to show him pictures at periodic intervals when we see each other in the courthouse. He is an excellent trial attorney for one of the country’s largest insurance companies. We first met in October of 2001 in the Kings County, Courthouse. He was my adversary on a personal injury case and we had been assigned to a judge for trial.

To be more precise, it was October 18, 2001 and after completing jury selection we presented ourselves at the judge’s chamber for the pre-trial conference. It is at that conference where we detail to the judge our list of witnesses, approximately how long we believe the trial will take, and any other details we think might impact the scheduling of the case. It was in the days when people still wore beepers instead of relying on text messages from cell phones. I informed the judge that my wife was nine months pregnant but that I did not expect her to deliver that day.

You see, my first three daughters were all born on Shabbos and I believe that humans are creatures of habit. I had every belief that my wife would hold out until Saturday and that I would be able to complete at least two days of testimony on Thursday and Friday. Nevertheless, I informed the judge that I had my beeper handy and that if my wife beeped, I would have to take the call. Once the jury was seated the judge made his standard introductory remarks and informed the jury that one of the attorneys had a personal issue that might impact the flow of the trial.

At around 11:00 a.m. my beeper went off for the first time. Using a signal the judge and I had prearranged, I alerted him that I had to take the call. So as not to prejudice the jury against any one attorney for interrupting the flow of the trial, the judge instructed the jury that he, the judge, needed to take a break. I stepped into the hall and called my wife, who informed me that she was in the beginning stages of labor. It was clear from our discussion however that there was no need to leave for the hospital at that time and that birth was not imminent.

The trial continued and I was losing badly. My witness was awful. All of the preparation I had done with him seemed for naught. He couldn’t recall details and those he did remember would have been better off forgotten. Forget about my wife giving birth — I was looking to climb back inside my mother’s womb to hide. As a trial attorney you get a sense of when you’re losing. The jurors — those are still awake — are fidgety, the judge is yawning and the court personnel are involved in other matters.

The only witness worse than my client was his doctor. He couldn’t find his glasses and when he did find them, it probably would’ve been better for him to lose them again. His notes were in disarray and his explanations were too technical and way above the jury’s heads. Thankfully, we took a lunch break, at which time I prayed that the jury would forget everything they witnessed that morning. I ate my peanut butter and jelly sandwich uninterrupted by any further pages from my wife.

The defendants produced a radiologist who testified for about 15 minutes. My cross-examination began at 2:20 p.m. and lasted till about 3:15 p.m., at which time my beeper went off again. Once again I phoned my wife who informed me that perhaps I should wrap things up for the day and come home. The judge wanted to know if it was imperative that I leave then, as he really wanted me to conclude my cross-examination of the radiologist. I wanted to continue as well, as I thought that I had made significant inroads in discrediting the defense expert.

I took that opportunity to ask my adversary if they would consider settling the case, as I believed that despite my atrocious witnesses, I had poked some serious holes in the testimony of their expert. “Thanks, but no thanks,” was the response. I decided to lower my demand to settle the case, informing my adversary that I would take half of what I originally demanded before the trial began. Once again he replied,

“Thanks, but no thanks.”

I continued my cross-examination of the defense radiologist.

“Are you ever wrong in terms of a diagnosis?”

“I don’t believe so,” he replied.

“Is it possible you ever make an honest mistake?” “I don’t believe so,” he answered.

“Do you ever lie when you testify?” I asked. “Absolutely not,” he shot back.

“Do you ever write your report in a fashion that is slanted so that you will continue to be called as a defense expert?”

“No sir,” he answered.

“Is it possible that two doctors might disagree about a patient’s condition?”

“That is a possibility,” the doctor answered.

“So, doctor, giving you the benefit of the doubt that you don’t lie, don’t slant your report, don’t’ make mistakes, but cognizant of the fact that other doctors that have testified in this case have a different opinion than you, is there any reason this jury should believe your testimony, as opposed to believing the other doctors testimony?”

Before he could answer, I slipped in one more question:

“And if you don’t make mistakes and you don’t slant your report and you don’t lie then Dr. Jones who testified on behalf of the plaintiff earlier this morning can make the same claims. So which is it doctor? Is it that one of you is lying and one of you is not, or is it that two doctors can have a difference of opinion about a patient’s condition?”

“And if one of you is lying why should this jury believe you? So I ask you again. Isn’t it just possible that you and Dr. Jones, who are both competent doctors, have a difference of opinion?”

The arrogance of the doctor’s response stunned me. “Mine is fact, his,” referring to the plaintiff’s doctor who testified earlier, “is opinion.”

I noted that the jury had picked up on his arrogance and was preparing to pounce when, alas, my beeper went off again. This time my instructions were to “come home now.”

I made it from downtown Brooklyn to Long Island in about an hour. We threw my wife’s bags into the car and arrived at the hospital some 30 minutes later. 23 minutes after that, our youngest daughter Rena was born, delivered by our friend, a physician who is anything but arrogant. In fact, he is one of the nicest people you’ll ever meet.

Before leaving the courthouse that day the judge declared a mistrial, excused the jury and told me and the other attorney that he would be sending the case to be reassigned for trial at some later date.

Approximately six months later the case was once again assigned out for trial. This time my adversary approached me as we were beginning to select the jury and asked if I would still be interested in settling the case for half of what I had originally demanded before the first trial. This time it was my turn to say “thanks but no thanks.” I reminded him of my effective cross-examination. He reminded me of just how awful my witnesses were. We ended up settling the case for the amount that I originally had asked for. What had, at one time, looked like a real loser of a case (despite my effective cross examination of the defense radiologist) turned out to be somewhat of a winner.

I still see that judge from time to time and he always asks me about my youngest daughter born in the middle of the trial. I frequently see my adversary from that case and he always asks me, “How’s my goddaughter?”

My daughter has a slightly different and interesting “take” on this case. When I told her the story she asked, had she not been born in the middle of the trial, would I would have lost? I told her that, in all likelihood, yes.

“Then the money you made was because I was born, right?”

“I guess so,” I replied.

“So, technically, the money is mine, right?”

I gave her a hug and said, “Yes, but after deducting the hospital bill, including the cafeteria and parking, we are even.”

When she finds out that all the hospital bills were covered by insurance, I might be in trouble. She will probably hire a lawyer. Perhaps, in a dose of poetic justice, it will be my Irish friend, the lawyer I tried the case against in October of 2001.