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Ben Glass
Ben Glass
Attorney • (703) 584-7277

Doctors' Lawyers Want Web Site Shut Down

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I could not have made this story up!. My friend, New York Medical Malpractice Attorney Gerry Oginski has a terrific consumer oriented medical malpractice website. He, like I, use our web site to fight our little battle agains the MILLIONS of dollars spent by the insurance industry to get mis-information out there about insurance claims, medical malpractice lawsuits and the like. His website is truthful, honest and filled with tons of good information.

Now, Gerry tells me that some defense lawyers in his area are trying to have his website shut down because they are afraid jurors will:

(1) disobey the judge and do Internet research during trial;
(2) stumble upon his truthful website
(3) get educated with the truth.

Seems kinda heavy handed to try to have Gerry turn off his website (no mention of course of all of the “tort-reform” websites out there that the jury may just stumble upon) and thus be deprived of his livelihood.

Now, note that they don’t allege that anything on the website is slanderous, libelous, defamatory or even wrong!

Boneheads.

Anyway, Gerry has let me reprint an article he has written for one of the Bar Journals in New York.

“YOU’VE BEEN GOOGLED. NOW YOU HAVE TO SHUT DOWN YOUR WEBSITE,” urged defense counsel.

Well, it finally happened. I’d been Googled. Not by my friends, but by my adversaries in a medical malpractice wrongful death case. Their googling apparently caused apopleptic seizures that rippled through the defense firms representing the doctors in my case that was marked final for trial on April 10,
2006 in Kings County.

The first inkling of trouble was a telephone call by adversary #1- someone who up until that time, I thought I had a good working relationship with.
“Gerry, I want to give you a heads-up about an order-to-show cause that you’ll be getting shortly,”
he said. “What’s it about?” I asked. “Your website. We want you to shut it down for the duration of the trial,” he answered. “What are you talking about?” I asked incredulously. “What could my website possibly have to do with a trial that we’re supposed to start in one week’s time?” I stated, having difficulty controlling my tongue and the tenor of my voice.

“We think that potential jurors might be prejudiced if they read the material on your website, and that’s why we want you to shut it down,” he responded.

Let me digress a moment. On my website which currently gets over 3000 unique visitors per month, I have over
65 articles that I have personally written, I have 190 frequently asked questions, I have 213 links to other resources, and over 285 news articles about verdicts and settlements across the country. In addition, I have posted deposition transcripts of doctors in cases I have handled that are de-identified. I have removed all identifying features in each of the depositions I have posted. The reason I posted these transcripts is to show people what I do, how I do it, and it makes for interesting reading.

If one does Google “Gerry Oginski” you will get 953 sites that refer to me and my website, my blog and other writings I’ve posted online. If you do a Yahoo search with the same name in quotations, you will get almost 8,000 sites that refer to my name.

The original Google search that my adversary performed “Anesthesia, wrongful death, Oginski” revealed his client’s deposition in the very case we were about to try. This was the only posted deposition in an active case. Even though it was de-identified and you could not determine who it involved, he asked me to remove it from my site for the duration of the trial because of the possibility that a juror could find the de-identified transcript while doing a search and read it during the trial. After much debate, and knowing that there is no case law on this topic anywhere in New York, I agreed to voluntarily remove the deposition from my site. You would think that my willingness to be courteous and professional to my adversary would have ended this issue. It did not.

He was still insistent that my website be shut down, because there was material on my site, “That if viewed by a potential juror, would prejudice that juror,” he wrote in his motion papers.

On April 10, 2006, when we appeared in the Medical Malpractice Trial Ready Part in Brooklyn, my adversary was insistent that the Court shut down my site. He referred to three articles I wrote as being somehow
prejudicial: “Insurance Companies and how they protect their profits,” “5 Typical Defenses in a Medical Malpractice Case,” and “Medical Malpractice: 10 Reasons Why Most Victims Won’t Recover a Dime.” The last article he cited because I include discussions about jurors biased by the insurance industry, the plaintiff’s inability to hire good qualified experts, and the basic premise that ‘juries like doctors’.

Defense counsel’s arguments were, impressively, based on total speculation. He argued that a potential juror might ignore the trial judge’s instructions not to discuss the case with anyone, that he might go online and perform a search about the attorneys or the topic involved in the case, that he would actually find information about the case, and that he might be prejudiced by reading such material. He wrote:

“We live in the ‘Google’ world where nearly everyone has access to the internet and many people perform internet searches as a means of obtaining information.
Jurors, in fact, often attest to a desire to ‘research’ the issues or attorneys on the internet. As a result, it is possible or even likely, that at least one juror (or prospective juror) will review the above-describe prejudicial materials on the plaintiff counsel’s web site…While an admonishment could be given by the trial judge, it is submitted that that would more likely result in an invitation to go to the aforementioned web site and provide a road map on how to get there.”

He also argued,

“…the limitation on free speech must apply to written statements disseminated by plaintiff’s counsel in a medium known to be viewed by prospective jurors, such as the website of plaintiff’s counsel in the very matter set to be tried before them.”

My argument was simple:

1. Shutting down my site would have absolutely no
effect on a juror intent on ignoring the Court’s instructions from doing online research,

2. All of the material posted on my website is freely
available on the internet, and was originally posted on the internet first, and then added to my site later,

3. If the Court felt compelled to shut down my site,
then logically, it would have to shut down every lawyer’s website (including all defense attorneys) in every case that came on for trial in every County in the State of New York. (The Courts’ response was, I think, facetious, “Maybe I will have to shut down every lawyers site…”)

4. Shutting down my website would not only be
unconstitutional- a judicial lockdown of my right to free speech, but would create undue hardship financially since I receive all of my direct cases from my online presence,

5. The information posted online is truthful and
provides consumers with abundant information they need to know before they hire an attorney,

6. The Courts’ curative instruction to any potential
juror would be all that was needed to address potential extracurricular research on the attorneys or the topic involved in the trial,

7. A decision that required me to shut down my site,
regardless of the duration, would have significant implications in the legal community, and would simply make bad law.

The Court initially wanted to have the trial judge address this issue in limine. However, with persistent urging by the defense, he relented and agreed to render a decision on this novel issue 60 days after receiving opposition papers. Because of this personal attack on my website, the trial would not proceed forward until this issue was resolved.

Note: At the time of this writing, the Court has not yet rendered a decision on this novel issue.

WHAT THIS MEANS FOR THE TRIAL ATTORNEY WHO CONTEMPLATES STARTING A TRIAL

Assuming you as the trial attorney do not live in the stone-age, and have a website that is updated more than once a year, there is the very real possibility that defense counsel will engage in routine motion practice attacking the information contained on your website, seeking to shut it down and deprive you of your livelihood and the right to free speech. A website is not just an online business card, but instead a medium to attract new potential clients.
It’s a medium to voice your opinions and to let others know what you do for a living, and how you’re different than the next lawyer.

It is totally foreseeable that the effort the defendants have made upon my site is only the beginning of what is likely to come. If this happens to you, I suggest that you be prepared with the same arguments I have raised, and that we band together as a united group to attack these frivolous and baseless motions; an attack upon our personal freedoms and the right to vigorously speak out for injured victims.