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Brooklyn Bar Association starts CLE series on medical malpractice

November 8, 2018 By Rob Abruzzese, Legal Editor Brooklyn Daily Eagle
The Brooklyn Bar Association is hosting a three-part CLE on medical malpractice over the next three Tuesday nights. On Tuesday, a panel of attorneys discussed the ins and outs of jury selection and opening statements. Pictured from left: John Bonina, Carolyn Caccese, Robert Elliott and Vincent Nagler. Eagle photos by Rob Abruzzese
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The Brooklyn Bar Association, in conjunction with the NYS Academy of Trial Lawyers, hosted its first of three continuing legal education (CLE) seminars on Tuesday night on medical malpractice cases titled “MedMal Skills Series: Knocking Your Case Out of the Park.”

The series includes three different panels of attorneys who will share their expertise at certain aspects of handling medical malpractice cases.

The first session was titled, “The Starting Line Up: Jury Selection and Openings,” and featured attorneys Carolyn Caccese, of Salenger, Sack, Kimmel and Bavaro; Robert Elliott, of Bartlett LLP; John Bonina, from Bonina and Bonina P.C.; and Vincent Nagler, of Koster, Brady and Nagler.

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“Tonight’s speakers are people who are not only highly accomplished lawyers, but are [also] wonderful people to have a conversation with or hangout with,” said John Bonina. “For each of them, they are dangerous trial lawyers in the courtroom because they are people who look to identify with others and they are identifiable people.”

Each attorney spoke for approximately 25-30 minutes. Caccese and Elliott covered jury selection from the plaintiff and defense perspectives, respectively. Bonina and Nagler followed them with a discussion on opening statements.

While the material covered at the CLE seems tailored for more inexperienced or younger attorneys, the Brooklyn Bar Association building was packed with attorneys of all experience levels on Tuesday, including at least one judge. When one of the lecturers asked people to raise their hands if they had picked a jury, nearly everyone in the room had.

Caccese pointed out that many attorneys have different theories for how to pick a jury, but she explained that in her experience there is no one way to do it. Instead, she explained that the most important thing is for attorneys is to be themselves and to try to look for jurors that they connect with.

“What you need from the jury is to be credible,” Caccese said. “If you lose your credibility as a plaintiff, you are going to lose your case. They have to believe you as a person so they can believe what you’re saying, your client and your expert testimony. If you come in trying to be someone else, it’s not going to work.”

Robert Elliott shared tips from his experience selecting juries and giving opening statements.

Storytelling is another big part of an opening statement or even picking a jury, Elliott explained. This way a jury is more engaged in the case as it unfolds, and he is often looking for clues from what they pick up.

“Early on in my voir dire, I try to tell a story. That’s my secret,” Elliott said. “The reason I do it is to break the ice. I try to get a laugh out of them because it makes them think, ‘Oh he’s not such a bad guy.’ When I get a laugh or two, I say, just because we’re laughing doesn’t mean that this isn’t very serious. While I’m telling the story, I’m making eye contact, I’m looking to see who thinks I’m full of you-know-what.”

Another common theme to both jury selection and opening statements is the importance of staying ahead of problems with the case. Caccese said that she’ll start to address issues immediately upon addressing the jury for the first time. Bonina explained that a key part of this is listening to your opponent.

“You need to anticipate what your adversary is going to do,” Bonina said. “The easiest way of doing that is to listen. When I started doing this, 25, 28 years ago, I was not a good listener, but you need to become a good listener. You have to listen to everything your adversary says in pretrial conferences, if there is a failed mediation. During jury selection they’re going to give at least a tidbit.”

Part two of the MedMal Skills Series on Nov. 13 at 6 p.m. will be titled “Going the Extra Inning: Direct and Cross of Expert Witnesses,” and will feature attorneys Jim Wilkens, Tim Sheehan and Kristin Kucsma.


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