Mitchell J. Makowicz Jr.’s fight for the right to bring his laptop to court
Published in 2011 New Jersey Super Lawyers magazine
on March 16, 2011
Updated on March 17, 2011
Lots of people Googled trial attorney Mitchell Makowicz Jr. last fall when he made national news headlines—not for winning a big case, nor even for losing one. In fact, all the attention still surprises him.
“I am stunned by the fact that this was noticed by anybody,” he says. “To me, it’s like I wore shoes to court.”
When his son informed him one night that his name was online on The Wall Street Journal, Makowicz Googled himself and discovered that, sure enough, the paper’s legal blog was reporting the news: During the jury selection for a medical malpractice case in 2009, Makowicz had Googled potential jurors—right in the courtroom. Now that the appeals court had ruled on the case, which brought his Googling to light, it was causing a hullabaloo.
Makowicz still doesn’t get why. To him, doing Internet research is a no-brainer. New Jersey courtrooms have free Wi-Fi, and they send juror lists to attorneys 30 days before trial—plenty of time to check the names on the Internet. But there are always last-minute additions. “There were some [potential] jurors that I knew I didn’t have information on. I was going to have to do those on the fly,” he says.
Carrying his computer that day, Makowicz questioned some jurors—“who I had information on already, by the way”—when his adversary made an objection.
“He can’t Google jurors,” the defense lawyer complained to the judge. Makowicz says he actually hadn’t—yet—but he didn’t pass up the opportunity to ask, “Well, why not? There’s no court rule; there’s no statute.”
Banter ensued over whether the computer gave Makowicz an unfair advantage, and finally the judge concluded that jurors could not be searched on the Internet—inside the courtroom.
“So, Judge, if I go outside the courtroom, I can?” asked Makowicz. The judge responded that he couldn’t control what attorneys do outside the courtroom.
The judge also ruled that Makowicz should have told him or opposing counsel what he was doing. “That one makes no sense to me!” says Makowicz. “That’s like me telling [opposing counsel], ‘OK, this is what I’m going to ask on cross-examination … just so you know.’ That’s ridiculous.
“I got a sense that this was something that was going to continue throughout the trial.” When his client lost, Makowicz appealed, arguing that the trial court had abused its discretion in barring him from researching jurors. The appellate court agreed—on the Googling issue, but not on retrying his case. New Jersey courts now allow in-court Googling of potential jurors, but that doesn’t retroactively help his client. Makowicz has appealed to the state Supreme Court and is waiting for its decision on reviewing the case.
A few years ago, the partner at personal injury powerhouse Blume Goldfaden Berkowitz Donnelly Fried & Forte had this epiphany:
“You can’t. Dwell. On losses,” he enunciates. “It has to sort of be water off a duck’s butt—because if you dwell on the losses, then you’re not going to be as aggressive in the next case.”
In his 25 years of handling medical malpractice, auto and wrongful-death cases, Makowicz has racked up a lengthy résumé of settlements and verdicts, some well over a million dollars. Makowicz tells the story of one verdict that shocked even the judge.
His client, an industrial-machine cleaner, suffered a litany of medical problems arising from cleaning off a toxic chemical. “As we’re trying the case,” says Makowicz, “the judge said to me, ‘I don’t think the jury’s buying your case.’” Apparently the chemical company agreed, and it offered a parsimonious $150,000.
“Verdict came in and it totaled $46.7 million,” says Makowicz with satisfaction.
The hefty verdicts don’t surprise his sister, who helped him land the job at Blume Goldfaden when she was a legal secretary for John Blume. “She told one of the partners here … that they had to interview me because I was the smartest guy in the world,” Makowicz says. “I think she oversold it quite a bit.”
As for why he pursued law? “I didn’t want to be a doctor,” he explains. “I couldn’t stand the sight of blood—so I figured, how else could you help people?” Ironically, it turned out the majority of his practice is medical malpractice. “Yeah, it’s a funny thing,” he admits. “I don’t tend to like the photos part of it.”
What he loves is a good trial. As for the Googling case, Makowicz has one more story to share.
“I got a call after [the WSJ] article came out from an attorney’s office in South Jersey,” he says. “I wasn’t able to take the call, but my paralegal took the message and she wrote down the exact question:
“What site did you use to Google jurors?”
“I’m going to repeat that, because it bears repeating,” he says. “What site. Did you use. To Google the jurors?”