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Say hello to attorney Peter C. Kopff’s new partners: Chicken, Noodle, Shy Shelly, Alligator and Moose. They just joined him for a big trial. The five are puppets that Kopff used recently in a New York medical malpractice trial that he won for the defense. For eight years, Kopff, a partner at the New York defense firm of Kopff, Nardelli & Dopf, has used puppets to get squirming 8- and 9-year-olds to pay attention during his Sunday school class at Lutheran Church of the Resurrection in Garden City, N.Y. Since they worked so well there, Kopff wondered about trying them in court. He thought about it for 10 years, waiting for the right case and the right children. They came in the case of twin 6-year-olds, Avery and Betsy Levine, who were born prematurely in 1995 with significant medical problems but who, Kopff asserted, had made “spectacular” improvement. The girls seemed shy during brief questioning from the plaintiffs’ lawyer, said Kopff. They opened up when — with no objection from plaintiffs’ counsel — Kopff pulled the puppets out of a black bag and introduced them to each girl as she sat on a chair in front of the jury box. Kopff said he took off his suit jacket and sat on the floor, with his back to the jury to talk to the girls. He wanted the jury to see “lovable, adorable, healthy” children who had outgrown most of their difficulties, he said. “I believe these puppets relaxed them, made it a fun experience and put them in a conversational mood,” he said. Each session lasted 20 to 30 minutes. With the help of Chicken and Noodle, who are fish, Shy Shelly, a turtle, and a large alligator and huge moose, Avery talked about a book she had read and said she likes music, CDs and Britney Spears, Kopff said. Betsy talked about riding the commuter train to New York and a bus to school. They talked about their brothers, wearing knapsacks to school and going to a restaurant for a hamburger. The plaintiffs alleged that a doctor’s failure to prolong the mother’s pregnancy and treat preterm labor caused the premature births and the girls’ pain and suffering. Plaintiffs’ experts testified about the girls’ medical problems after birth, their remarkable improvement and their ongoing medical needs, such as care from six specialists. The puppets pertained only to the question of damages, should the jury have found the doctor liable. NO LIABILITY The Manhattan jury found that the doctor, Joan Kent, wasn’t liable for the girls’ past or future pain and suffering. The jurors rejected the plaintiffs’ request for $3 million. Levine v. Kent, No. 124206/99 (New York Co. Sup. Ct.). Though the puppet show didn’t apply to the heart of the case, Kopff said that using them may have helped him. It certainly impressed the judge. “I just thought it was brilliant,” said Supreme Court Judge Martin Schoenfeld, who presided. “He actually got this very shy child to respond to his questions.” When the girls played with the puppets, showing that they were articulate and had good hand-eye coordination, it just “knocked out” the plaintiffs’ claim of ongoing developmental problems, Schoenfeld said. The judge noted that the children were not witnesses giving sworn testimony. Instead, the plaintiffs’ attorney brought them as a demonstration for the jury, which opened them up to questions by the defense. In-court puppet shows “might come off as a little goofy,” said Andrew S. Kaufman, president of the New York State Medical Malpractice Defense Bar Association. “It definitely is a little bit on the edge,” he said. “It could backfire. All new ideas have that potential. It’s not for everyone and it’s not for every case.” In the right instance, however, “I think it could be very powerful.” The plaintiffs’ attorney in the Levine case, Lawrence H. Singer, of counsel with the law office of Roy Scaffidi in New York, said he’s not sure what Kopff was trying to achieve with the puppets. “It was a show, but I don’t know for whose benefit,” he said. “I’m not even sure I understood what he was trying to do. I made no representation that they were other than what they were.” Though the girls are in a mainstream public school, they still receive therapy and remain under the care of six specialists, Singer said. He said he wasn’t inclined to object to the defense’s using puppets. “I think it had little to do with the outcome,” he said, adding that he and his client are considering an appeal. Through their mother, the girls alleged, among other things, that the obstetrician failed to diagnose and treat preterm labor. The girls were born at about 26 weeks, “about as early as you can be born and survive,” said Kopff. Four of five children born at that age will have catastrophic problems, he said. The girls had cerebral palsy and seizure disorder, as well as physical and cognitive developmental problems. Both underwent heart surgery; one had laser eye surgery. The plaintiffs’ counsel emphasized the girls’ ordeals and showed pictures of them soon after birth. “They looked horrible,” Kopff said. “They were smaller than a person’s hand.” With the puppet show, he said, maybe some jurors will say, “Gee, the defense lawyer really isn’t a thug. He’s probably a pretty nice guy. And he helped me see this truth, maybe more so than the person who brought the kids in.” In medical malpractice cases involving childbirth, defense lawyers are concerned mostly with cross-examining the plaintiff’s experts, jury selection, summation and making appropriate objections, said Kopff. Cross-examining tiny plaintiffs doesn’t command a high priority in trial preparation, he said, but “it can have a tremendous impact. “I just felt I kind of stumbled on to something that worked for me in this case,” Kopff added. “I certainly am going to think about it in the future.”

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