Pre-Trial Conferences. As your trial approaches, your attorney and the plaintiff’s will meet with the judge to discuss the procedures and ground rules to which they will adhere. The judge may also exert some pressure on both parties to settle before your court date. Your attorney and insurance carrier will keep you informed about these discussions.

Do not be upset if you see your attorney conferring with the plaintiff’s counsel. Such discussions are a normal part of the litigation process.

As was mentioned earlier, a relatively small proportion of malpractice suits ever reach the courtroom. Even fewer are ultimately decided by the jury, since settlement during trial is not uncommon.

If, however, your trial proceeds to completion it will have five phases: 1) Jury Selection, 2) Opening Arguments, 3) Presentation of Evidence, 4) Closing Arguments, 5) Jury Instructions and Verdict.


Jury Selection. Your jury will be selected from the pool of people impaneled during the period in which your trial begins.

Each prospective juror will be questioned, by the judge and - if the judge so allows - by the attorneys. Their purpose is to assess the individual’s attitudes about the issues to be raised during the trial. Each side may reject a certain number peremptorily, and each will seek to retain those she feels will give her case the most sympathetic hearing. If you wish to know your attorney’s criteria for selecting jurors, discuss it with him beforehand.

Should you recognize a prospective juror or have objective reasons for feeling that one ought to be excluded, be sure to inform your attorney.

Opening Arguments. Once a jury is selected, its first duty is to hear the opening arguments of each attorney. Plaintiff’s counsel generally speaks first.

These arguments may last only a few minutes or they may take several hours. The attorney will outline what she believes to be true in the case, what she intends to prove, and what types of evidence she plans to introduce. If a case is highly technical, she may spend some time defining terms.

Don’t be surprised if the opening arguments are more dramatic than any portion of the litigation process you may have viewed thus far. They represent each attorney’s first opportunity to impress the jury, and each may appeal as much to emotion at to reason.

Try to control your emotions. That may be difficult. You will have spent many months anticipating this trial and preparing for it. You will have a great deal at stake, and the pressure upon you will be considerable. But despite the strong emotional reaction, it is imperative that you remain impassive in court.

The strength of your contribution to the defense will in part depend on your ability to keep your feelings under control and to view the procedures with as much detachment as you can. Each day you will meet with your attorney to evaluate what has occurred so far and to adjust your defense accordingly. And before too long you will be called to the stand. You will perform most effectively if you maintain a measure of objectivity, working to gain a clear insight into how the opposing strategies interact.

The Evidence. When opening statements have concluded, presentation of the evidence begins. The plaintiff’s case is heard first, with the plaintiff’s counsel leading her witnesses through direct examination and your attorney cross-examining them. Under courtroom rules, all cross-examination must be confined to issues raised under direct examination.

The object of your attorney’s cross-examination will be to weaken the testimony given by a witness. If she feels that she cannot accomplish this, or if she does not consider the testimony to have been strong in the first place, she may confine herself to only a few questions or ask none at all. It is wise to rely on her judgement in this and all other matters involving courtroom strategy.

The plaintiff’s witnesses may include other health care professionals who treated her client. The plaintiff may appear, as may her employer and family members.

Also appearing for the plaintiff will be a physician, called as an expert witness. Some defendants consider it an affront when a colleague testifies against them. But without experts on both sides the trial probably could not proceed. As was pointed out earlier, the major issues at stake in your trial are injury, negligence, and proximate cause. The criteria for determining the extent of each are established, not by the law, but by physicians - the expert witnesses. Each will define what he or she believes to be the standard of care expected of a physician working in your specialty. Naturally, their definitions will disagree. It is up to the jury to decide which most probably should apply.

Oddly enough, one of the plaintiff’s witnesses may be the person he or she is suing - you. It is not uncommon for a defendant to appear, not only on her own behalf, but also as an adverse witness for the opposition. As the treating physician, you know more about the care you rendered than can be revealed by the experts or the records. Plaintiff’s counsel has the right to present your knowledge to the jury without being constrained by the rules of the direct examination. Thus, the court permits him to cross-examine you. When she is finished, your attorney will then have the right to ask clarifying questions.

Your Trial Testimony. Your appearance as an adverse witness for the plaintiff may be the most difficult challenge you’ll face during the litigation process. It may also be the most critical. The verdict may depend on your performance under questioning that will, at best, be unfriendly. Treat it for what it is likely to be - a minefield. But remember, this is all an elaborate act, performed for the jury. Learn how to play it. Let your attorney know the best way to present the facts. Help her know how the jury can arrive at the truth of the matter.

Your attorney will help you prepare. Be ready to follow these guidelines:

Speak to the jury. The questions may come from counsel, but the people who must be convinced are those seated in the jury box. Address your answers to them. Speak as you would to a patient, assuming your classic role as educator. You may find the plaintiff’s attorney using tactics that distract your eyes from the jury’s. Even so, remind yourself to direct your answers towards them, not counsel.

Make your answers complete. This is not a deposition, where you are advised to give a truthful answer but no more. At trial, you should seize every available opportunity to state your position and demonstrate your expertise. Always try to provide the jury with all the information you think they’ll need to make an informed judgment.

If you are unable to make your answers complete, don’t be upset. An answer that may be in your interests will not be in the plaintiff’s, and counsel may cut you off in mid-sentence. Don’t let it bother you. Let your attorney object to the interruptions if she feels they are improper. Otherwise, for the moment, accept the fact that plaintiff’s counsel is trying to make her case, not yours. Your attorney will give you an opportunity to present your viewpoint at the appropriate time.

Don’t let plaintiff’s counsel put words in your mouth. She may try to do this with a leading question. She may summarize your notes and ask you to agree with her summary. She may lead you through a chain of hypothetical questions. Go along with her only if you are absolutely confident that you know where she is headed. Otherwise, proceed as you did during your deposition. Beware of leading questions. Avoid the hypothetical or general in favor of the actual and specific. If you wish, refer to the medical records before commenting on them.

Do not contradict your deposition. Plaintiff’s counsel will know your deposition inside out. You should to. If your trial testimony contradicts it, she may try to introduce it into evidence for the purpose of impeaching what you have said on the stand. Even if she does not succeed, she may still cast doubt on your credibility. The simplest way to avoid these problems is to tell the truth, be prepared for the lines of questioning, and study your deposition transcript.

Do not lose control of your emotions. This could happen for a variety of reasons. Plaintiff’s counsel may be repetitive in her questions. She may insist on “yes” or “no” responses. She may question you aggressively, badgering you and impugning your testimony with sarcasm. All these may be tactics designed to win points with the jury. If you become angry or lose your composure you will make these tactics a success. In the process, you will persuade the jury that you react poorly under stress - here and, by implication, in the emergency department.

If your attorney objects to a question, listen. Never answer a question or continue speaking over an objection lodged by your attorney. Your attorney has a purpose for making the objection. Listen carefully, and her reason should become clear to you. Additionally, until the judge rules on the objection, you do not know if an answer is called for.


Your Defense. It is in the presentation of your defense that all your preparation will pay off. Your lawyer will present a series of witnesses, including a defense expert. But the testimony that will carry the most weight will be yours.

Your attorney probably will not prepare it with you question by question. But she will review the areas she expects to cover. As the trial progresses, she will also assess the strengths of the plaintiff’s case and help you direct your testimony towards weakening them. Here are some guidelines she may ask you to follow:

Again, speak to the jury. Unlike plaintiff’s counsel, yours will encourage you to relate to the jurors as you do to patients - with professionalism and compassion. Support her efforts by facing the jury as you speak and putting your answers in terms you feel they will understand.

Follow your attorney’s lead. Counsel will structure the individual questions and their sequence to give you the best possible opportunity to state your case. Listen carefully and let your answers move in the directions the questions suggest. Don’t try to anticipate what is coming next, and don’t speak to issues not raised by a questions.

No surprises! Your attorney is not looking for surprises. Don’t “freelance” on the stand. Give answers consistent with what you have told her throughout trial preparation.

The Trial Concludes. When the defense has rested the trial moves into its final phases. First, both attorneys present closing arguments. Like the opening statements, these summarize the evidence, press the conclusions to be drawn from it, and urge the jury to return the desired verdict.

After closing arguments, the judge will give the jury a series of instructions to be followed in deciding the case. He will outline their responsibilities, define such concepts as “negligence” and “proximate cause,” and present other information pertinent to their task. These instructions are not given extemporaneously, but read from standard forms, copies of which will be given to the jury for use during their deliberations.

The jury will then retire to discuss the case. After as little as an hour or as much as several days, they will return with their verdict.