David Seidemann: A parent’s greatest gift

From the other side of the bench

Issue of Jan. 16, 2009 / 20 Teves 5769

Being engaged on trial is all-time-and-energy-consuming. And so it was last week when I spent the entire week in the Bronx trying a personal injury case in front of a judge and a jury of six with two alternates. At issue was whether the school district should be responsible for not preventing an assault on school grounds, perpetrated against my client, by two known bullies who were his classmates.

My adversary argued that the attack was spontaneous and that the teacher could not have prevented it, no matter how closely she might have supervised the children. I argued that the substitute teacher that day should have been informed, either by the regular teacher or by the principal, that here was bad blood between the two boys who attacked my client, a nice, sweet boy of eight. Had she been so informed she could have stationed herself at the end of the dismissal line where the bullies and my client were standing, and not at the front of the line, where she could not see them, and more importantly, where they could not see her.

Once she was out of sight, around the bend of the stairwell, the perpetrators were free to attack. What I found fascinating about the trial was that every half hour my feeling changed as to which side was winning. After the trial, my adversary, the judge and I sat around for 45 minutes schmoozing about the case. All of us agreed that with each witness’ testimony, the ebb and flow of the trial seemed to have changed, and that it was difficult to get a read on what the jury was thinking.

Juror number six was a huge problem for me, as she seemed to sleep through most of my client’s testimony. My client, now 14, testified first. He was well spoken, affable, credible, and to the point. The defense scored some points on cross-examination, by contrasting his testimony at trial with his deposition in 2003, and highlighting some inconsistencies. On redirect examination, I was able to have him explain that today, at 14 he is more articulate, and better able to express himself, than when he was eight.

My initial plan was to paint the teacher as out of touch and indifferent to the well being of the students entrusted to her care.

At the start of her testimony, I was able to elicit from the substitute teacher that she had had very little, if any, instruction in class control during dismissal. All was going well until she started crying, telling the jury how much she loved and cared for each and every student. Those tears (I don’t know if they were genuine) resonated with the jury, as I sensed by observing the jurors lean forward as she was talking. Even juror number six momentarily stirred to take in the teacher’s testimony.

It was then that I had to change my focus of inquiry and plan of attack. From that moment I began to build that teacher up as one of the most sensitive and caring educators on Planet Earth. I built her up as a teacher who wished more than anything in the world that this attack had never happened and that if only she knew — if only the principal had told her that the day before there had been some “words” between the victim and his attackers — she would have shadowed him during dismissal.

I was able to have her testify that if she only knew what had occurred the day before she, in all likelihood, could have prevented it. I was able to have her express that if only the principal had left her a note the incident might not have taken place. The case settled later that day.

My practice involves personal injury, medical malpractice and divorce claims. Not too many people ask me why so many car accidents happen, however, many people ask me why the divorce rate is what it is. There are many reasons, and each could be an article by itself.

One reason however, is manifested in a way similar to which the trial I just described unfolded. People often enter a marriage with the expectation that they are entitled to have their life proceed with the same ease and comfort that they were used to while growing up in their parent’s home.

But that’s not reality. “Reality” is the witness whose testimony demands that you make an adjustment mid-course, often on the fly. Reality is that our parents shield us from most uncomfortable situations so that our ability to compromise, change direction, and shift our approach to life rarely comes into play.

It seems to me, that the second greatest gift we can give our children is a life devoid of problems. However, the greatest gift we can give them is the ability to deal with problems.

David Seidemann is a partner with the law firm of Seidemann & Mermelstein. He can be reached at (718) 692-1013 and at ds at lawofficesm.com.