Justice Spodek and others give CLE on medical malpractice at Brooklyn Bar Association

November 21, 2018 By Rob Abruzzese, Legal Editor Brooklyn Daily Eagle

The Brooklyn Bar Association capped off its medical malpractice CLE series with a panel that included (pictured from left): John Bonina, Hon. Ellen Spodek, Robert Danzi and John Barker. Eagle photos by Rob Abruzzese

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The Brooklyn Bar Association wrapped up a three-part continuing legal education series on medical malpractice on Tuesday night with a four-person panel that included Justice Ellen Spodek.

The series was titled “MedMal Skills Series: Knocking Your Case Out of the Park” and took place on three Tuesdays in November. The final installment covered charge conferences and summation.

The panel included John Bonina, a past president of the New York State Academy of Trial Lawyers and the Chair of the Medical Malpractice Committee of the Brooklyn Bar Association, who served as the moderator; Justice Spodek; and attorneys John Barker, of Vigorito, Barker, Porter and Patterson, LLP.; and Robert Danzi, of the Law Offices of Robert F. Danzi.

“Judge Spodek’s career has really been one that makes for a great judge,” Bonina said. “She worked in court counsel for a number of years, after which she had her own firm and own practice. She has always said that she has not forgotten what that is like for the lawyers who appear before her. She hears cases on many subjects including medical malpractice cases and she is one of the busier malpractice trial judges in Kings County.”

Each of the four speakers lectured for approximately 30 minutes each. Justice Spodek opened by speaking about jury charge and pre-charge conferences. She discussed some of her common practices handling medical malpractice cases in her court. Part of her emphasis was on lawyers submitting their request for charge.

“The reason you have the charge conference before is so you can put your objections to the charge on the record before you sum up,” Justice Spodek said. “Do not just say to the judge, ‘Just the usual requests.’ It’s not for me to do your homework and I can miss something. Sometimes I catch what was missed, but sometimes I don’t, and if everyone consents it could affect your case.”

Justice Spodek also emphasized sticking to case law from the particular department in which the case is being tried when submitting a memo to the court.

“When you are submitting a memo — if you are in the First Department, try to have First Department cases,” she said. “In the Second Department, have Second Department cases. If you submit a memo in the Second Department, don’t tell me there is [no case law pertaining to your case.] I can’t believe that there is nothing in the Second Department [concerning case law.] I have been reversed for following the First Department when I thought there was nothing in the Second Department.”

Barker, a former Assistant District Attorney in Brooklyn who currently handles a lot of medical malpractice defense cases, talked about the importance of speaking directly to a jury. He also explained how a good summation comes early on in the process.

“If you didn’t take the time to get the building blocks to prove your case, what are you going to talk about in your summation?” Barker said. “Your summation has to be based upon evidence and the reasonable inferences from that evidence. You have to be thinking all along the way about the theory of your case, ‘How am I going to get those elements I need so I can have a persuasive argument that I can use against my plaintiff?’”

For Danzi’s portion of the CLE, he stepped down from the podium and turned on a projector. It was part of his “show-it-don’t-say-it” demonstration.

“One of the things I’ve found so puzzling for the years I’ve been doing this is that when you are standing in front of the jury after hearing from a host of defense attorneys, two, three and sometimes four, you are faced with the problem [of] how do you deliver a level of eloquence and articulation to compete with them? I’ve been doing this for 39 years and I still haven’t figured that out.”

“In this day and age of multimedia, I think that to incorporate a reliable way of being able to put facts on this screen and say to the jury, ‘Listen, as eloquent as I can try to be, we’re here to establish what the facts are. I’m going to ask you not to just rely on what I’m saying, or what my colleagues are saying, let me show you what the facts are.’”

Danzi explained how it is essential not to fumble with technology when doing this, sharing that he often has his law partner and son, John Danzi, assist him with his presentations.

The Brooklyn Bar Association will not have another CLE meeting this year. It will host its annual Foundation Dinner at the New York Marriott at the Brooklyn Bridge on Dec. 10. Its next CLE is scheduled for Jan. 10 and titled “Wrongful Convictions: Causes and Preventions,” with a panel that will include Hon. Barry Kamins.