Helping Those Who Heal
Mae D’Agostino protects doctors and hospitals
Published in 2009 Upstate New York Super Lawyers magazine
By Tom Callahan on August 21, 2009
Sometimes modern medicine seems to have all the answers. But when Upstate doctors and hospitals run into legal problems, Mae D’Agostino is often their solution.
“If a doctor or hospital gets sued and calls anybody who has any knowledge and asks, ‘Who should I get to represent me?’ the answer is going to be Mae D’Agostino,” says Daniel Santola of Powers & Santola.
“She is one of the best medical defense lawyers in the state,” says E. Stewart Jones of the E. Stewart Jones Law Firm. “She is at the top of her profession. I do not think there is any more honorable lawyer. Her word is her bond. She is a very vigorous and successful advocate who represents her clients well.”
Santola and Jones are both plaintiff attorneys in medical malpractice cases and have faced D’Agostino on many occasions. When arguing against her, Santola says, “I actually feel honored because it is a wonderful experience to be on the other side of a lawyer who is competent, qualified and capable, yet knowing she is someone who is not going to resort to gamesmanship or delays.”
D’Agostino lives the law. She starts a typical day by working on depositions at the breakfast table. After a full day in the office or court, she returns to her legal work after dinner. She keeps a notebook next to her bed during trials for thoughts that arrive in the middle of the night. After almost three decades, she still loves it. She runs her own successful firm out of a big old mansion in Menands.
Still, there is one priority that transcends the practice of law. “When I get my son’s soccer or lacrosse schedule, they go right on my diary and my assistant is careful to carve out that time for me,” she says. “If a judge will let me out of court, I am at the game. I think I have been to more of Ted’s games than many of the non-working parents I know.”
Despite all she has accomplished as a lawyer, she says, “Ted is the most important person in my life.” He is now 15 and like most parents of teenagers, D’Agostino is already worrying about his 16th birthday and the driver’s license that follows.
“Before I had a child I think my life was out of order in that everything revolved around the law for me,” she says. “But after I had Ted, I really saw the bigger picture. You have to leave the office at night being thankful that you have a family and good friends. You can’t let a loss or bad results eat at you.”
D’Agostino is one of the lucky few who discovered her path early in life. “If my elementary school was having a school play, I remember asking the teacher if I could be the narrator,” she says. “I was never interested in a dramatic part. I loved public speaking.”
She was born and raised in Albany. Her father owned a construction business and her mother was a homemaker. She developed an interest in the law when her cousin, Ted Occhialino, was staying with her family while studying for the bar exam. Occhialino eventually went on to become a law professor at the University of New Mexico.
D’Agostino graduated from Syracuse University College of Law in 1980. There, she had a career-defining moment as a member of the 1979 National Mock Trial Team that won the national championship, in a trial presided over by Leon Jaworski, the former Watergate special prosecutor.
She recalls, “I had such a rush of adrenaline during that competition.” Later, the New York State Trial Lawyers Section held an award ceremony for D’Agostino and two other team members at Cooperstown. Even though she had a year left of law school, her future was decided.
“I felt such camaraderie existed with the trial lawyers,” she says. “The trial lawyer’s bar is such a great group. We knock each other’s lights out, and then we shake hands and move on.”
After being admitted to the bar, she was willing to do anything involving trial work. She considered becoming an assistant district attorney in Albany but when that didn’t pan out, she answered an ad in the newspaper. The firm that hired her, Maynard, O’Connor and Smith, did a lot of defense work in civil cases. At first she handled no-fault automobile negligence claims and then started trying medical malpractice defense cases.
She has been doing mainly medical malpractice work ever since. “It’s extremely challenging,” she says. “I think it is one of the toughest jobs you can have in the law. To make it more challenging, most of my cases are extremely serious. I am not trying minor, inconsequential cases. There is tremendous pressure in every case.”
Usually, she is contacted by a doctor, hospital or insurance carrier. She works multiple cases at a time and many of them are not easy to defend in front of a jury.
“In every case I have to deal with the sympathy issue,” she says. “I try a number of brain-damaged infant cases. And when these children come into the courtroom, my heart breaks for them. So I can just imagine what is going through the mind of the jury. But you learn over the years to deal with the sympathy issue head on and talk to the jurors about it. In most instances I have been able to successfully convince jurors to decide cases on the law and the facts, not the sympathy.”
According to Jones, “She has a great feel for the dynamics of a trial, the courtroom and the jury. I categorize her as an iron fist inside a velvet glove. She knows when to be incredibly forceful and when to be very gentle. Either way, she gets to where she has to go to represent her client.”
But despite how much she enjoys her work, she will not go to trial just for the sake of going to trial. “If she feels it is in the best interest of the client to resolve it by negotiations, she’ll do that,” says Santola. “She does what is right. Because her reputation is so sterling, all the adjustors and hospitals and clients listen to her. She is not the kind of person who will be manipulated by an insurance company or adjustor.”
D’Agostino refuses to take all the credit for her success. “Christine Kirwin Krackeler was instrumental in all of my achievements as a trial lawyer,” she says. Krackeler, her best friend and partner, died three years ago at the age of 61 from cancer. With her, D’Agostino founded D’Agostino, Krackeler, Baynes & Maguire—now D’Agostino, Krackeler, Maguire & Cardona—in 1997.
“Chris and I had the kind of friendship where the two of us could look at each other and know what the other was thinking,” she says. “She not only wrote our appeals, but she often helped me formulate questions at deposition that would prepare our cases for future motions of appeal. She often came to trial with me, to help with the thorny issues that sometimes arose.”
What few colleagues know about D’Agostino is how much she loves to play basketball. “I can’t go past a basketball hoop without taking a shot,” she says. Indeed, she played basketball for two years as a forward on the Siena College women’s team. She coached youth basketball for five years and plans on returning to coaching this year.
She credits her immediate and extended family with helping her keep her life in order.
“Being a trial lawyer is often a 24-hour-a-day job,” she says. “Having a child and family and friends prevent total craziness in this line of work.” So would mom mind if Ted decided to follow in her footsteps?
“He might want to go into something dealing with pharmacy or pharmacology,” she says. “He really likes math and science a little more than I did so I think he is going in the opposite direction. I would be proud if he were a trial lawyer, but there would also be a little sadness because I know it is a very demanding lifestyle.”
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