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Diary of a Medical Malpractice Trial

By Matthew B. Smith

Day 1

Jury Selection. To the uninitiated, jury selection can be a jarring experience. Decisions are made based on superficial factors such as age, sex, employment status. Is it better to take the unemployed teacher versus the stay-at-home housewife? The college student versus the accountant? Many times, the ultimate decision comes down to the “gut feeling” about a prospective juror. All the while, we are carefully utilizing our peremptory “strike” in order to remove jurors whom we do not feel will be favorably disposed toward our side of the case.

Day 2

Presentation of Evidence Begins. To be clear, much of the work has already been accomplished weeks, months, or even years ahead of time. A full compliment of pretrial motions helps to limit the extent of evidence deemed admissible at trial.

The defendant doctor is one of the first witnesses to be called by plaintiff’s attorney. This is unquestionably the most stressful portion of trial. However, with ample, careful preparation, the doctor is prepared for whatever questions are posed. Significantly, he conducts himself in a calm, professional manner, not withstanding the often times boisterous style of plaintiff’s attorney.

Day 3

Plaintiff presents her expert witnesses. Again, much of the work has already been accomplished months ago. Careful preparation for the discovery deposition of the witness allows much more effective questioning on cross examination at trial. While many attorneys seek to make cross examination of an opposing expert a very confrontational event, experience has shown that jurors are equally impressed by a calm, well-organized cross examination. Special care is taken to make sure plaintiff’s experts do not go beyond opinions already expressed. This requires careful pretrial review of their deposition testimony and any opinion disclosure.

Day 4

The defense case begins. Defense experts are presented. By this point in the trial, the jury has heard the underlying facts many times over. Thus, a succinct, well-organized presentation of expert testimony is much appreciated. Effective presentation of expert testimony depends largely on ample preparation. This includes extensive (often late-night) meetings with the expert the night before to discuss trial testimony to date and what, if any, unexpected changes have occurred in the interim. Effective expert presentation also includes contrasting the differences with plaintiff’s experts: age, experience versus youth and inexperience; extensive reliance on peer reviewed journals versus “off-the-cuff” opinions.

Day 5

Defendant doctor is recalled to the stand to conclude the defense case. This is an effective way of concluding the defense of any case. The defendant doctor now has an opportunity to explain his side of the case in his own words. Again, the jury has heard the underlying facts many times over, so we seek to avoid “reinventing the wheel.” However, a succinct discussion gives the jury valuable insight into the defendant’s thought process. A well-prepared, personable and composed defendant can go a long way toward weighing the jury’s ultimate decision.

Closing arguments then follow. People instinctively assume that closing arguments should be a loud, boisterous event. While this can be effective, it is equally effective to present the jury with a more clinical evaluation of the evidence. They have been paying attention for five days and know the evidence. Closing argument is a final opportunity to focus their attention on those aspects of evidence that are most beneficial to the defense of the case.

The trial described above resulted in a verdict for the defendant’s position. Of course, it is impossible to guarantee victory. However, experience shows that careful preparation and attention to detail can give the defense case the best opportunity possible.


Originally published in the Fall 2009 edition of Quinn Quarterly.

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