Published in 2024 New York Metro Super Lawyers magazine
By Natalie Pompilio on October 22, 2024
Ben Rubinowitz celebrated his 68th birthday last June by delivering an opening statement in New York State Supreme Court on behalf of clients injured and killed in the worst crash in Metro-North Railroad’s history.
He wouldn’t have it any other way.
“The client’s plight is everything, and if you’re not going to do it that way, don’t do it all,” says Rubinowitz, managing partner at Gair, Gair, Conason, Rubinowitz, Bloom, Hershenhorn, Steigman & Mackauf, which he joined in 1989. “That means weekends, pulling all-nighters, no holidays. It’s part of the business.”
During his 40-year career as a personal injury attorney, Rubinowitz has secured 30 verdicts and more than 180 settlements exceeding $1 million. In the last decade alone, juries have awarded his clients record-setting compensation: $120 million in 2023 to the family of a man who suffered brain damage because inexperienced doctors failed to quickly treat his stroke; $59 million in 2019 to a former high school student maimed during a chemistry experiment; $71 million for a woman seriously injured in a car accident and $41.5 million for the family of a sanitation worker killed by workplace negligence in 2017.
“He doesn’t think about anything else, and that’s why he wins,” says longtime friend and fellow attorney Evan Torgan. “He doesn’t just think about what he’s going to say. He thinks about precisely how he’s going to say it.”
“Precise” is a word frequently used to describe Rubinowitz, along with “dedicated,” “tireless” and “intense.”
“He gets 60 minutes of work out of an hour. Most people can’t do that,” says Richard Steigman, another Gair Gair Conason partner. “He has laser vision. That’s his superpower.”
Rubinowitz puts it this way. “My mother knew the key to success was to work harder than anyone else,” he says. “If you do that, you’ll make it. If you don’t, don’t expect results.”
Rubinowitz grew up in a small town on Long Island, the second of three children. His father was a doctor who worked in hospital administration. His mother was a nurse because she was told women don’t become doctors. “She was the hardest working person I ever met,” Rubinowitz says, “a nonstop worker with a very strong personality who taught us at an early age that everyone is important regardless of race, religion or creed,”
A photo circa 1963 shows a group of children, Rubinowitz in the middle, at a school integration rally holding signs with messages including “Liberty and Justice for all” and “I want equal education too.” “We were marching,” he remembers. “She taught us that discrimination was unacceptable.”
He went north to Boston University for his undergraduate degree, returning to New York during his senior year after the unexpected death of his father. Determined to stay close to home, he chose Hofstra for law school.
That’s where he met Patrick McCloskey, the executive assistant Nassau County district attorney teaching criminal procedure. McCloskey became a mentor. Rubinowitz still seeks out his advice.
“He taught a way of cross examining where you look behind the witness’ obvious answers,” Rubinowitz says. “You really take a good look. What is the witness trying to get across? How can you set this witness up? How can you knock this witness down? It’s the way I look at cross examination now. What is it the witness said, but more importantly, what didn’t the witness say? What was it the witness did, but what didn’t the witness do?”
At McCloskey’s urging, Rubinowitz joined the Nassau County District Attorney’s Office after graduation. In three years, he had 50 jury trials.
“Although I was only earning $16,500 a year, I would have paid for that job because it gave me more experience than I could have ever imagined,” Rubinowitz says.
When Rubinowitz left the DA’s office, he immediately gravitated toward medical malpractice.
“I always had a real strong interest in medicine,” he says. “This way, I could learn medicine and use the skills I’d gained as a prosecutor.”
Rubinowitz returned to Hofstra Law as a guest instructor not long after graduating. “People went to him for advice even when he was a very young lawyer,” Torgan says. “He’s a great teacher.”
Torgan, founding partner of New York’s Torgan Cooper + Aaron, knows from experience. In 1992, he was representing a brain-damaged child in a neo-natal medical malpractice case. But he was having a hard time dealing with a witness whose courtroom testimony was at odds with the notes she’d recorded at the time of the incident.
“I was in Manhattan,” Torgan says. “He lived on Long Island. I drove two hours out to get Ben’s take on the situation.” Rubinowitz’s input helped develop a line of cross examination for the nurse dealing with her contradictions about whether the baby had enough oxygen in the nursery: “To reflect the fact that the baby was fine, you wrote the baby’s chest was retracting. To reflect the fact that the baby was breathing smoothly, you said the baby was grunting. To reflect the fact the the baby had good color, you wrote that the baby was blue-gray.” The result: a record-setting $90 million verdict.
“For most lawyers, trial practice is an art. For him, it’s a science,” Torgan says. “Everything he does, everything he says when he cross examines someone, is very thought-out, very exact, very pinpoint.”
Steigman, who was a paralegal when he began working with Rubinowitz in 1993, notes the attorney’s lack of ego. “From the beginning, it was ‘What do you think? You’re not just carrying my bags.’”
During one early case, Steigman remembers, he and Rubinowitz were lunching and talking shop, Rubinowitz taking notes as Steigman shared an idea. An opposing attorney stopped at their table and said to Rubinowitz, “Is that how it works? He talks and you write it down?”
“I remember being embarrassed. He was taking a shot at Ben, making fun of him, and Ben didn’t care,” Steigman says. “His focus is on doing the best for his clients. … I’ve tried to carry that forward when I’m working with lawyers: ‘Assume I’m going to have a heart attack 10 minutes before court and you’re doing it. If you’re on my team, you’re doing to do this with me, not for me.’ I got that from him.”
One of the most important things Steigman has picked up from Rubinowitz is making hard work seem effortless. “When you watch a Hitchcock film, you don’t say, ‘That’s a great director.’ You say, ‘That’s a great movie.’ You don’t know what went into making it happen,” Steigman says. “He wants everyone in that courtroom to feel like he was put on this Earth to try this case and communicate the facts of this case to them, and nobody will do it any better than him.”
And when lawyers are anxious before cases, Steigman adds, Rubinowitz reminds them why they’re doing the job. “He says, ‘You think about the client. It’s not about you. Don’t be self-conscious. Go out and do it for them. You’re standing and speaking for someone else.’”
Longtime friend Mitchell C. Benson, a surgeon at New York-Presbyterian Westchester and emeritus chairman of the Department of Urology at Columbia University, says he admires the careful way Rubinowitz chooses his cases and his defendants.
“Ben has a passion for fairness, and getting people who are truly injured their just rewards, but he also has a sense of equity and doing the right thing. We all know there’s medical malpractice and we all know it occurs when people have done something wrong, but there are also people who get unfairly blamed—including interns and residents,” Benson says. “Unless Ben has a clear example that the injury was caused by an intern or a resident, he does his best to get them out of the lawsuit so as not to tarnish their reputations. … He’s not only defending injury, he also doesn’t want to create injury.”
And sometimes he does one better. About 10 years ago, Torgan says, he and Rubinowitz were on a case together, with Rubinowitz representing a woman blinded in an auto accident and Torgan standing for the woman’s husband, who’d been killed. While Rubinowitz was making his opening statement, Torgan noticed that one juror was learning back with his head against the wall, eyes closed.
“I thought, ‘Poor Ben. The juror’s out like a light,’” Torgan remembers. Then another juror gestured to the man and called out, “I think he’s dead!”
“The whole courtroom was frozen,” Torgan says. “Except Ben. He jumped into the jury box and began giving the guy CPR. I went into the jury box, too, although I had no idea what I was doing.”
“It was unusual to say the least,” remembers Rubinowitz, “but we saved him.”
The juror had suffered a heart attack and was rushed to the hospital. He survived, but did not return to reclaim his seat. “The cases settle a few hours later for over eight figures,” Torgan says, “since the defense lawyers never left their seats.”
The non-monetary wins are important to Rubinowitz, too. In May 2015, a woman and her granddaughter, Greta Devere Greene, age 2, were standing on a New York City sidewalk when they were hit by debris falling from the façade of a nearby building. Both were injured. Greta died the next day.
New York’s “zone of danger” rule was introduced by the NY Court of Appeals in the 1980s. It says, in part, that a plaintiff can recover damages for emotional distress if they’d observed serious injury or death of an immediate family member resulting from the defendant’s conduct. Rubinowitz, representing the grandmother, wanted to seek damages for emotional distress, but the defendants argued a grandmother was not “immediate family.” The appellate court agreed.
“It was horrible,” Rubinowitz says. “We knew the law had to be changed.
In 2020, Rubinowitz took the case to the NY Court of Appeals. “I argued that the nuclear family isn’t like it used to be. It’s not Leave it to Beaver. It’s more like Modern Family. The fact that somebody is basing a decision based on a title … is ridiculous,” he says.
In February 2021, the Court of Appeals agreed. “We changed the law,” he says. “It was a beautiful decision.”
Rubinowitz has no plans to slow down any time soon—especially now that his son James, his only child with wife Sharon, has joined him at Gair Gair Conason. “I joined this firm when I was 33 years old and I’m surrounded by some of the best lawyers you could imagine,” Ben says.
For more than 35 years, he’s lectured and taught at multiple law schools, including Harvard, Yale, Cardozo and Hofstra, as well as at the National Institute for Trial Advocacy. He’s been asked to lecture members of the judiciary. He estimates he’s led more than 1,000 Continuing Legal Education classes and he’s been featured on countless instructional videos. For decades, he and Torgan have co-authored a regular column in the New York Law Journal on trial advocacy.
He even speaks to hospitals and other medical organizations about how to avoid malpractice claims. Rubinowitz says it’s about doing the right thing.
“I show them where there are failures,” he says. He gives an example: A man preparing for a vasectomy has a presurgical chest X-ray for surgical clearance. The reviewing radiologist notes that the man has some nodules in his chest and suggests they be further explored. But the urologist only sees that he has clearance, so he performs the vasectomy and moves on. Months later, the patient is back in the hospital, now with lung cancer.
“It all comes from a failure to communicate with each other. I show them that if they took a little more time, they’d be able to protect so many more patients,” Rubinowitz says. “We’re all in this together. If we can stop medical malpractice from taking place, it’s a good thing for everyone.”
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