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Will You Please Raise Your Right Hand – Considerations For The Day Of Testimony

By Marc Lanzkowsky, Esq. – Senior CoverMD Contributing Editor

Summary

In this article, Marc Lanzkowsky, Esq. discusses some important considerations a doctor should take into account on the day of testimony in a medical malpractice trial.

The day of trial in your medical malpractice trial defense - be prepared.

It probably seems like years since the first day you were served in the case. Discovery has been completed, depositions taken, experts consulted and trial preparation completed. The day has come for you to get on the stand and testify on your own behalf. You have fully prepared by reviewing your transcript, discussing the game plan with counsel and practicing your testimony. It’s time to raise your right hand and swear to tell the truth the whole truth and nothing but the truth. And if you do that, all will be right with the world. Well not so fast.

There are many things to consider to make sure the jury listens and understands what you are saying and does not get distracted with side issues. Remember, many jurors think trials work like Law & Order. Two minute opening statements, thirty second cross-examinations and the “ah gottya” moment. Clearly this is not the case in the real world. Regardless, the impression you make at trial can have a large impact on the jury’s ability to trust your credibility.

There are some steps to consider during trial to put you and your testimony in the best light. These are as simple as what your physical appearance should be to where to look and stand when speaking to a jury. As always, discuss specifics with your counsel, before you do anything, as local considerations must be taken into account. Regardless, here are some useful suggestions to consider before and during your testimony.


 Appearance

Yes appearance can have an impact. You must look professional and dress the part. No casual clothing, even if you dress that way normally. Jurors will look to you to educate them about complex medical issues and to play the role of teacher means looking like you know what you are talking about. Leave the $2000 Armani suit, gold Rolex, and Gucci shoes at home and opt for a more conservative approach. Juries notice more than you might think and first impressions here do count. Remember, many courthouses are small and you will likely see a juror in the hall or the parking lot. They will notice you and take in any information they feel will help their ability to judge you.

I once attended a trial in rural Arkansas. The courthouse was small and the defendant doctor was caring and attentive and was in court every day of the trial. Unfortunately, he drove to this working class county in his brand new luxury sedan every day. When the jury was asked some of their reasons for awarding money for the plaintiff some of them said that they had seen the doctor getting into his fancy car and figured he could afford it. While this may be an extreme example, it is real that they will notice everything.


 Focus on the Jury

The jury, not the judge or opposing counsel, is there to listen to your testimony. You are not there to outsmart plaintiff’s counsel or get to express your anger or indignation about the proceeding. You are there to clearly explain your answers to the jury. When counsel asks a question it is for the jury. Turn to the jury box before answering and explain your answer. Make eye contact and have a conversation with them. You are there to tell them, not opposing counsel, the story. Don’t fall for the trick of an opposing counsel standing as far away from the jury to question you so as to direct your eye contact away from where it needs to be. There is a pattern to the movement and counsel will try and use any technique to throw you away from coming across well to the jury.

 Stick To The Story And Don’t Try And Anticipate

Understand that your first appearance on the stand may not start by being called by your counsel. The plaintiff’s attorney may call you on their direct case as an adverse witness. This will mean they will try to lead your testimony and shape it to their story from the beginning. It will be important to stick to the themes of your case that you reviewed with your attorney. Don’t try and outsmart the other attorney asking questions by trying to beat them to their next question. Anticipating where they are going, and trying to beat them to the punch before they get there, only comes across as antagonistic. Wait for the question and answer what was asked. Your counsel should have prepared you for the tough questions and you should already have rehearsed how to answer those issues that you have concerns about. When asked a question that may be problematic it is acceptable to answer first and then explain second. For example “Yes, however….” or “No, but….” Counsel may try and stop you off, however, they will not want to be seen as too aggressive in cutting off testimony. Providing the context to the jury and sticking to the story will help ensure you are put in the best light. Also, don’t fight the obvious because you are not fooling anyone when you do.

 Confidence

Being confident on the stand is critical. If you come across as frazzled, and easily shaken, the jury will not feel comfortable with you as a medical professional. The jury box is filled with lay people so confidence is expressed when you teach the jury about the technical aspects of the case. Explain things, and as noted above, look them at them when you give your answers. If you fail to express personal confidence in the story, the jury will have a harder time believing you. Practice sessions before will help ensure you are ready for all challenges and be in a position to be authentic, fresh and free with your testimony.

Conclusion

There are many other things that may be worth considering when on the stand. Speak with your attorney and ask them anything specifically that you should consider. No concern should be left unaddressed. If you are worrying about what color tie to wear or where to put your hands then ask your attorney. Preparing for trial properly will help you be confident and credible to the jury and ensure the jury focuses on the facts and not on something trivial.


About the Author

Marc Lanzkowsky, Esq. - CoverMD.com Senior Contributing Editor

Marc Lanzkowsky began his career as a Medical Malpractice Defense Attorney in New York, where he represented physicians and hospitals against claims or negligence.

Marc received a bachelor’s degree from New York University in 1988 and a Juris Doctorate from Pace University School of Law in 1991 and comes from a family of 9 physicians making the subject of Medical Malpractice near and dear to his heart.

Click here to read Marc's full bio



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