Michael S. Berger: For the People

Q&A with a medical malpractice attorney—and activist at heart

Published in 2011 New Jersey Super Lawyers — April 2011

Growing up in Indiana, what influences shaped you?

Indianapolis is very suburban, very middle class, very mid-American. I would say the most important early influence was the fact that my dad made us work at my uncle’s car wash on Saturdays and Sundays, and we all learned what we didn’t want to do when we grew up. It taught us about hard work; it taught us the importance of working with different people and respecting different people, no matter how they grew up or what they did. And it really gave us all—my brother, my sister, my cousins—a lot of responsibility at an early age.

 

Any other pre-law work experience?

I was a tour guide for groups of 30 people from Chicago on two-week tours to Canada. At the time I was the youngest tour guide in the country. I was a tour guide through three summers of college and my three years of law school ... to Hawaii, Alaska, California, Canada. It was a really great experience, learning about those areas, but also learning about the dynamics of people.

 

Working with that many tourists, you’ve got to have some great stories.

[Chuckles] I can’t tell you those.

 

What ultimately drew you to law?

Actually, I wanted to be a lawyer since I was in seventh grade. I was always interested in law and politics, and you know, you’re lucky if you know what you want to do when you grow up. I always wanted to be a lawyer; I don’t really know why, but I just knew. I used to read the newspaper and the editorials, starting in seventh grade, and [chuckles] was one of three Democrats in my high school in Indianapolis.

 

How did you end up in New Jersey?

I was looking at the job board at George Washington [University Law School], and I saw an advertisement for a Spanish-speaking lawyer representing migrant farmworkers. I didn’t even know what a migrant farmworker was at the time, but I came up and they did a real good sales job. Nine months after I was hired [at Camden Regional Legal Services], all the senior lawyers left for other jobs, and I was left in charge of the entire office.

 

How did you happen to be fluent in Spanish?

I was a Spanish major, and my Spanish was good enough that, even back in 1968, I studied at the University of Madrid when it was very uncommon to go abroad. I was good at it; I enjoyed it, I just liked it. It was a gift and a key to many interesting things that I’ve been able to do. 

 

So what did you do at that first law job?

My first job was representing migrant farmworkers who traveled from Puerto Rico to southern New Jersey to harvest mainly tomatoes. … I represented migrant farmworkers on housing, wages issues; there was one case even involving allegations of slavery, where migrant farmworkers were prevented from leaving their farm labor camp. There was one case where … a New York Times reporter named Don Janson, a state legislator named Byron Baer, and a president of a farmworkers corporation … went to free a particular migrant farmworker. The assemblyman’s arm was shattered by the crew leader and they were chased off the farm. The crew leader was charged with assault and battery, and he may have been acquitted. The crew leader was also charged [and acquitted] with slavery in federal court. I worked at Camden Regional Legal Services when Spiro Agnew was vice president to Nixon. [Agnew] would always attack Legal Services projects, and one of his primary targets was Camden Regional Legal Services because it was a hotbed of activist young attorneys.

 

Where did you go from there?

I was an attorney for the solicitor’s office for the U.S. Department of Labor [representing the Occupational Safety and Health Administration—OSHA]. I was the lawyer on the case against American Cyanamid. This was a case where five women were working at the American Cyanamid paint-pigment plant, and in order to keep their jobs they were required to be sterilized. The ultimate decision was made by Judge [Robert] Bork, the Supreme Court nominee who was not approved, and that [case] was one of the issues in the Bork hearings. It was called Secretary of Labor v. American Cyanamid. I handled that case at the trial level and lost. The administrative law judge and the appellate judges thereafter ruled that it was not a violation of OSHA to require women to become sterilized. It was absolutely unbelievable. It was absolutely insane.

 

And after the Department of Labor?

I met the international health and safety representative of the Oil, Chemical and Atomic Workers Union in working on that American Cyanamid case; he was the guy who was supposed to meet Karen Silkwood. This almost sounds like a fantasy. It kind of gives me chills when I think of it, in retrospect. So he and I became friends, and he was known to be a pretty demanding union representative, difficult to work with if you were a government attorney, but he and I got along very well and worked on these very difficult cases at the Department of Labor when I was doing the OSHA work. He told me about a friend of his—and this does turn a little bit into fantasy—he was very good friends with Fred Baron. Fred Baron was the lawyer who was in charge of finance for the John Edwards campaign. Baron said, “Look, you can earn a living and represent asbestos workers and you can be on the right side against insurance companies; why don’t you look into that?” So I ended up becoming a local personal injury lawyer, working for what was then the best personal injury trial firm in our area, and I represented New Jersey asbestos workers as local counsel to Fred Baron’s firm out of Texas. Fred was a great guy; he was the guy who really started all of the litigation for asbestos workers across the country. So I did regular personal injury cases and, because of my background at OSHA, I did asbestos cases and some chemical exposure cases and a couple of medical malpractice cases. Then I went on my own in 1986.

 

Did you start winning trials right off the bat?

Since you’re asking, the first trial I had was in 1979. I remember it well … my son was born in the middle of the trial. I represented somebody who was charged with assault and battery on a police officer and resisting arrest. I was then working for the ACLU Farmworkers Project that I’d started. … I’d never seen a jury picked before, I’d never done a criminal case before, I begged my client to fire me multiple times and he refused. I thought the case was going to be downgraded from a felony to a misdemeanor; it was not. He had been convicted as a felon two times before, and if he was convicted a third time, he was going to go to jail for a very long time. … He was acquitted of assault and battery on a police officer and convicted of resisting arrest, overturned on appeal, and was free. That was a really good result for a first time.

 

How did you pull that off?

I went to the library and read the book How to Establish Reasonable Doubt.

 

It pays to go to the library.

It pays to be lucky. That was an amazing result. My client was Puerto Rican, the case was tried in a very conservative southern New Jersey county, and a very hostile environment.

 

Where were you working at the time?

I was working for what was then called The Law Offices of Nathan Friedman. He was my mentor. The first day I was there, or maybe the second day, he gave me a trial against a very experienced defense lawyer for the following day; he gave it to me at 4 o’clock in the afternoon. It was a jury trial, and I stayed up all night. It was a young man who was injured as a guest at somebody’s house where he fell down the stairs. I stayed up all night reading about tort law and negligence law in New Jersey, which I was totally unfamiliar with at the time. Trial by fire was great training for all of the young lawyers who worked in that office. That office produced some of the best lawyers in the state. The case settled, so that would count as a win. I was made a partner and then decided to go out on my own. I was in solo practice from 1986 to 1997.

 

Then you joined up with Ken Andres?

We started our firm in 1997. He’s really one of the great trial lawyers of the state. I was president of the Association of Trial Lawyers of America–New Jersey [now New Jersey Association for Justice] the year before he was president of [that organization], and we spent a lot of time in Trenton lobbying lawmakers. We got to know each other and trust each other and respect each other’s different styles. We’ve been together since that time; it’s a great partnership.

 

And you work in a restored Victorian building?

Yes. I’ve been here for 15 years. We fought the zoning board to have it turned into an office from a residence, renovated it, maintained its historical integrity. In the basement there is a tunnel because this used to be part of the Underground Railroad.

 

What is the most fun part of your job?

I enjoy deposing and cross-examining doctors who try to fool, fabricate and avoid answering questions, and I enjoy listening to their answers, taking them apart systematically during depositions and then using their depositions at the time of trial. And I enjoy my clients. I have great clients.

 

How are doctors on the stand?

Many of the doctors who make mistakes—particularly egregious mistakes—many are defensive, many are arrogant, and many are just not that bright. Some of the doctors are scary.

 

What advice do you have for young attorneys?

Get as much courtroom experience as you can—and it’s not easy to get these days; it’s a real challenge—and work hard. The misperception people have about lawyers is that we earn great incomes and we don’t have to do anything to earn the incomes. The truth of the matter is that, when I look back at all the weekends of my life that I spent preparing for trials instead of spending time with my kids … my kids used to ask me, “Don’t you know that your life is not normal, and you’re not a normal parent and you work more than all the other moms and dads?”

 

Any interesting courtroom stories?

I represented a woman who had a stroke as a result of getting a catheter in an artery rather than a vein; and, as a result of the stroke, she [could] only see on one side of [her] eyes. So she couldn’t see anything out of the right side of her left or right eye. So you could literally sneak up to her on her right side and she wouldn’t see you. But she was a really interesting character. She was a singer—this was when she was younger—a singer and a dancer, and she’d show me pictures from when she was young, and she was romantically involved with one of the mob guys in Philadelphia. She was a real character and just a wonderful, wonderful human being. During breaks she would talk to the defense lawyer about these connections in Atlantic City and, as tough as that guy was, she just charmed the hell out of him and everybody else. This guy’s trying to beat your brains in and she wouldn’t stop, because she knew she had this effect—with a capital “E”—on people. They were contesting her injury. What happened was, toward the end of the trial, it was late in the day and both lawyers were at sidebar discussing an issue, and unbeknownst to me, I had left my cell phone on in my briefcase. One of my buddies was calling me about 5 o’clock or so, and it was ringing and ringing and it is really embarrassing when that happens. But it was on her right side, and she heard it but she couldn’t see it, and she couldn’t find it because it was on her blind side. So when the phone was ringing, she was groping around the right side, looking for where the ringing was coming from, and it proved the point so beautifully. It was almost tragic comedy the way it happened. … [The defense] caved when the jury was out. When I spoke with the jurors on the way out after the trial concluded, they all said, “Wow, that was incredible.” … Usually the phone goes off during your summation or something!

 

Any other stories?

I was trying a case where there was an alleged anesthesia accident, and my client became brain-injured as a result but he was still able to communicate. He just couldn’t work and he was taking medication. He was a huge guy, maybe about 6' 6", weighing about 325. So I’m cross-examining the defendant and I think I’m doing a great job, and the judge looks at me and nods her head, and I turn around and the guy’s dead asleep on counsel table, snoring. So never think that you’re doing that great a job, because you still may be putting them to sleep.

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