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Friday, August 5, 2011

Got a lawyer and an appeal (or hope springs eternal).

Feeling dejected and angry I went over to the clerk's office to request copies of the transcript.

I watched tons of Law and Order. Each time a guilty defendant won there was nothing the state could do. This was the end of it. And Jannetta had won.

The clerk asked me if I wanted to file papers for an appeal.

"Oh, No. I can't appeal. I lost the case." She looked at me in surprise. "You absolutely have the right of appeal." It took most of my self-control not to squeal in relief and hope. I scooped up the necessary forms she held out to me delighting in the knowledge maybe all was not lost.

I left the office and walked into the hall looking for the elevator. Standing in front of it was Mr. Olszewski.

He tried to be pleasant, making little chitchat I no longer recall. He ended by saying it was nice meeting me and that he wished me well.

"We'll probably be seeing each other again. I just filed for an appeal." His face fell. "Oh." "Yes.", I said. "I did not even know I could do that until the clerk mentioned it." "I sure wish she hadn't told you about that." he replied somewhat under his breath.

Pro Se in this case had been enough for me. I had to get an attorney for the appeal. Armed with the perjurious testimony as well as the illustrations Drs. Jannetta and Gendell had drawn at their depositions, which did not jibe with each other, and other proof of malpractice and negligence, I assumed I would have no problem finding a lawyer.

One or two still turned me down, mostly because of the problems left from Kate Lecky's mangling of the case as well as the fact that I had been Pro Se.

Fed up with cold calling attorneys I decided to contact a kid I knew from high school who was now an lawyer.

Mike Fishbein and I had not known each other well or hung out in the same groups but I remembered him as a person of integrity and decency. That was what I wanted in a lawyer. Aggression would be good too, but the others mattered because it meant they would honor their commitment to me, the case, and the law.

Mike and I met for about a half an hour. A few days later he advised me he would accept the case. The cost would be in the form of a contingency agreement, 66 1/3% for me and 33 1/3% for him.

At our second meeting he introduced me to Robert Unterberger, an associate. Although the contract was between Mike and I Mike told me that Bob would be doing most of the work. I agreed, mainly because at the end of the day Mike was still the one in charge of the case. It was his word, his signature, his promise to me via the contract, on which I would rely.

He told me that I should write up the first layer of appeal. It went to the Judge who had non suited the case. "Carol, This will automatically be denied." And it was.

Mike wrote the next brief. Although he relied on his own research for case references much of it rested on my work as Pro Se.

The issue for 1 of the 3 appellate judges reviewing the case was that I had not entered the deposition in the proper form as evidence. Dr. Jannetta read from the deposition but I was supposed to have entered the deposition transcript as evidence. The stenographer twice reminded me to do so but my nerves got the best of me and I had forgotten to do it.

The one judge thought this technical error was sufficient to deny the appeal. Thankfully the other 2 judges dissented, stating that although I should have done so, the fact that the testimony had been officially entered into the record was sufficient to allow the case to be returned to the lower court to be reheard.

I was in. And I had an attorney. This would be a homerun.

Nah. Of course not.