Medicolegal Issues

Do you want to prevail at trial? Here are 10 keys to effective testimony

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Your fate depends on whether you can win over the jury
through education, demonstration, and friendly persuasion
(Key #4: No putting on airs!)


 

DID YOU READ?

“10 strategies for the hot seat: Giving a successful deposition”
Andrew K. Worek, Esq (February 2012)

Mr. Worek reports no financial relationships relevant to this article.

You survived the deposition: Your attorney advised you that it went well and that nothing you said was catastrophically harmful to the defense of your case. Now it’s time to move on to trial.

A date has been set, and you’re anticipating it with a fair dose of trepidation. You may find yourself pacing nervously along the marble corridors of the courthouse or staring with foreboding at the witness stand, with its solitary chair and microphone. Rest assured: There is much to be done to navigate your way through the trial process.

In this article—a follow-up to “Strategies for the hot seat: Giving a successful deposition” (February 2012)—I offer 10 tips for getting through a medical malpractice trial.


1 Preparation is critical

How do you get to Carnegie Hall? You’ve heard the joke.

Preparation is absolutely critical. You are going to have six to 14 jurors, a judge, defense counsel, opposing counsel, the plaintiff, and a small audience watching your every move and hanging on every word, but there’s no need to be nervous if you have prepared.

That said, be informed that hours upon hours of discussion and review of the care rendered with your attorney may be necessary to ensure that you understand medical and legal issues and can address both with confidence.

Any hesitation or poorly chosen phrase can have a detrimental effect on your case. Review every aspect of your testimony, the exhibits you plan to use, and the questions likely to be asked by your own attorney and opposing counsel—and do so repeatedly. You should expect to spend several days immediately before trial in your lawyer’s office going over every detail, so clear your schedule.

Don’t stop until you are familiar with every aspect of your testimony and the facts. Anything less may cause you to appear un-prepared, confused, or, worse—incompetent.

2 Put on your educator’s cap

Now is the time to teach.

During your deposition, you concentrated on simply answering the question that was posed in the manner in which it was asked, and you tried to avoid educating opposing counsel. A trial is different—you have a panel of jurors who are eager to hear your side of the story. These are the people who will decide your fate. Now is the time to teach.

I was once told—and I truly believe—that most jurors understand science and medicine at the high school level. Of course, some jurors will have greater understanding, and some less. Teach the jury the reasons behind your medical decisions and explain why they were correct. A teaching approach—as opposed to monotone answers—will help hold the jury’s attention and address its inquisitiveness.

Work with your attorney to develop appropriate explanations of medical terms, diagnoses, and treatments at issue in the case.

3 Face the jury

We typically look at the person to whom we are speaking. In the courtroom, this tendency translates into a focus on the lawyer who is doing the questioning rather than the jury. In the big picture, however, you are testifying to the jury, not the attorney—so look at the jurors when you speak.

Your attorney may position himself (or herself) near the jury so that your gaze encompasses both him and the panel. However, even if the attorney asking questions is not near the jury, turn toward the jury when you answer.

It may help to turn your chair to angle slightly toward the jury when you take the witness stand to make yourself more comfortable and avoid appearing as though your head is on a swivel. Doing so will also help you face the jury more squarely and directly.

Look into the faces and eyes of the jury when you answer questions. Speak to them, not at them.

4 Be yourself

When you are preparing for trial with your attorney, review the answers you expect to give to various questions. Work on delivering those responses in your own words, the way you would present them to a patient or a peer. A jury can detect sincerity and its opposite—glibness.

You and your counsel may agree on the information or points to be disclosed in response to a certain question, but on the witness stand, you will have to respond with your own voice and vocabulary.

5 Prepare to be cross-examined

Most jurisdictions permit opposing counsel to call a defendant physician to the witness stand, “as if on cross-examination.” This means that the opposing attorney can ask you leading questions in an attempt to box you into “Yes” or “No” responses with little or no opportunity to explain. This is customary. You must be prepared to face heated examination.

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