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Tuesday, August 9, 2011

Maybe I should have stayed Pro Se.

Neither Mike Fishbein nor Robert Unterberger (Bob), the associate I was told would be working on my case, were working on my case.

That is an overstatement. They found an expert, right specialty, wrong subspecialty. We needed a neurosurgeon with an adult practice who was very familiar with the MVD. Instead they found a pediatric neurosurgeon. He could not comment on adult practices. It was not his specialty. Nor was trigeminal neuralgia.

It was hard to find a neurosurgeon willing to testify against Dr. Jannetta, or testify, period. At trial I used the best Jannetta Procedure expert there was: Dr. Jannetta. Who better to know the surgery and, as the defendant as well, he would not cost us a cent. But this was not whom they thought to engage as our expert.

A facial nerve specialist and an ophthalmologist, at the least, were important to the case. Mike did not bother with the former. He asked me to see if my ophthalmologist would testify. Dr. ( ) agreed to, about the eye damages as well as the lifelong complications and risks. The other effects of the paralysis was left with no one to speak about them.

No depositions or interrogatories were sent out by either of my lawyers.

The only expert they had me see was a vocational counselor. His report would state whether I could work and at what. It went to the issue of damages but in the scheme of things was the least important report we needed.

The trial was scheduled but nothing was happening. I waited, thinking a lawyer of Mike's caliber was getting all his ducks in a row. Two months before we were to go to court, my worry mounting, I met with him.

"You're not acting as my advocate." He looked at me without any visible concern - about me or the case. "I have been doing this for 20 years and after all that time you lose your zest for it."*

I did not know what to do or think. The Judge was not going to give us a continuance. I already knew how he felt about me and the case.

I kept my fingers crossed hoping that the ducks would start lining up.

It was the week before trial. Bob called me. "Trial starts next Monday. I'm picking the jury Friday afternoon. You can come up to Pittsburgh on Friday."

He had not prepped me for trial. He had not prepped the ophthalmologist. To my knowledge he had not talked with the (wrong) neurosurgical expert.

It did not seem he was ready for trial but there was nothing I could do about it.

At least, I thought, I'll be in Pittsburgh soon and once he preps me to take the stand I'll feel like this trial is really ready to happen..

Then my phone rang.

"Carol, you don't need to come up here this weekend. I won't need you until the trail starts so you can wait until late Sunday to come up."

Late Sunday? Then when was he going to prepare me to testify?

My fear about his readiness for trial turned out to be a wasted worry.

He called me Friday evening to tell the jury had been picked. That was good. It was the rest of what transpired in that call and the additional 6 others, over a 2 1/2 hour period, that had me in a tizzy and sobbing into the phone.



*He has denied saying that.

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