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Preparing for a Medical Malpractice Trial

By Marc Lanzkowsky, Esq. – Senior CoverMD Contributing Editor


In this article, Marc Lanzkowsky, Esq. discusses how a doctor should prepare in the event he is faced with a medical malpractice trial.

Statistically, the likelihood that you will actually have to testify in a trial is low. Most claims that are brought are resolved well before trial with many of those resolutions resulting in no payment being made. Regardless, cases do go to trial and if that does happen you will be called to testify on your own behalf. Testifying in front of a jury can be a nerve-wracking experience, however, it can also be a time to explain the facts and get you your proverbial “day in court.” Like most things in life, success at trial will depend on preparation. The more prepared you are, the better your chances of success will be.

Waiting to the last minute to prepare for trial is never a good idea. If your attorney says she will prepare you the day before you testify, you may want to consider a new attorney. Good preparation requires time and practice. While there are many ways to prepare for trial, below is a basic “primer” for your consideration prior to trial.

 Be Involved

Be actively involved in the preparation for your medical malpractice trial defense
This is your case and your reputation on the line. Being involved in your own defense from the outset will increase your chances of success should a trial occur. If it appears that your case will be going to trial then you need to take steps to actively assist your attorney trying your case.

At the outset of your claim, discuss any concerns you may be having about the case and how involved you would like to be. I have seen doctors tell their lawyers to call them only when they are needed to appear and others who are actively involved throughout the process. Counsel, despite many years of defending doctors, does not have the knowledge and resources to understand the medicine and the facts as well as you. Assisting counsel in your own defense early will to help to solidify a consistent story, explore any weak spots, and be more fully prepared for trial.

 The Deposition

Your deposition was likely the first experience you had being questioned by another party under oath. While deposition testimony is similar to trial, it a vastly different experience. Whether you knew it at the time, your deposition testimony will play an active role in your trial testimony. While cases are usually not won at deposition, they can easily be lost there. If you did well at your deposition it does not mean that trial will have the same outcome. Plaintiff’s counsel will go through your deposition and look for any opportunity to exploit any weaknesses. In preparing for trial it is important to thoroughly read and fully understand your prior testimony. Your trial testimony must be consistent with your deposition. If there is something that you find concerning in your deposition transcript then discuss it with your counsel as to how you would deal with that issue. If this is done in advance then you may be able to craft a preemptive story as to any issue and eliminate any negative impact plaintiff’s counsel will be trying to create.

 Review The Story

A medical malpractice case can be a complicated set of facts that require multiple experts discussing a lot of scientific evidence. As you know, juries did not spend 4 years in medical school and 4 years in postgraduate training. Juries are used to TV trials where testimony lasts 5 minutes and are filled with “Ah ha” moments. The key to a successful trial will be to have a consistent and easy to understand story or theme to the events at issue. Work with your attorney to know, not only your own involvement, but also the whole story of the case. Setting the context for your actions will help to establish an easily comprehensible set of events to explain your actions.

Developing this consistent story or theme will also assist counsel in preparing the rest of the case as well as other witnesses and for cross-examination. This simple theme for your defense will permeate all aspects of the case from jury selection, opening statements, testimony and summation. You will need to understand and express these themes throughout your testimony as well. Work with counsel and review the themes regularly prior to trial.

 Prepare For The Tough Questions

Preparation is about planning for what is expected as well as how to handle the unexpected. No matter how good your case is you will always have some questions over some aspect of your testimony. Discuss those fears with you attorney and review those questions and how you would answer. Don’t assume opposing counsel won’t ask a certain question or think, “how can they ask me that?” If you have a thought that a question is a possible concern, then the opposing attorney has likely thought of that same concern too. Role-play the situation with your attorney acting as plaintiff’s counsel. By doing this in advance you can learn how to adjust your testimony to present yourself in the best way. Practice different responses with counsel until you are comfortable with the answers. The more you practice the better your ability to be in control of the situation.

 Courtroom Visit

Visit the courtroom as part of the preparation for your medical malpractice trial
Courtrooms can be intimidating places and are a far cry from the office where your deposition was taken. Courtrooms also come in all shapes and sizes and some with very poor acoustics. Ask counsel to take you down to the courthouse to see where the trial will take place. If the court is not in session it will be easy to sit in the witness chair and get an idea where everyone’s place is. Take seats at counsel’s table, at opposing counsel’s table, the witness stand, and in the jury box. This will give you a perspective of all vantage points and understand how you will be perceived and would need to project to those places.

Your ability to clearly discuss the case and explain your answers to the jury is a key to good testimony. Knowing where you are going to stand and possibly move to demonstrate something to a jury will help you express confidence and impart more credibility to your testimony.

 Review Your Prior Writings And Google Search

If you have written any articles on the subject at issue you may want to quickly glance over them to make sure you understand the basis and nature of those writings. Opposing counsel will have found and reviewed those articles and will certainly use them against you if they can. Remember, protocols change, research changes and facts are almost always distinct. Knowing how your article might apply to the current case’s factual scenario will allow you to properly prepare for any challenges. I have seen a plaintiff’s attorney try and spin an article a certain way thinking the expert had not remembered what he had written years earlier. In that case the expert actually did remember the article and pointed out a finding that countered plaintiff’s entire argument. This event resulted in plaintiff’s counsel being reprimanded by the judge and certainly enhanced the witness’s credibility.

Before trial starts do a Google search and make sure there is nothing that might need to be explained. We are living in a digital age and those pictures of you and your friends partying in Las Vegas the day before you treated the patient will come out. Better to know in advance and let counsel know anything that could be addressed at trial. Remember, plaintiff’s counsel will bring up any issue that they thing may attack the credibility and veracity of your testimony. Being prepared will help avoid those embarrassing unrelated issues that nevertheless could put you in a bad light.


Preparing for trial is about practice. Talk to your attorney and review a plan for your preparation in advance and dedicate the time to execute that plan. If you take some basic steps and review your story and testimony in advance you will present yourself in the best light and be in the best position to defend your care.

In my next installment I will looking at considerations for the day of testimony during the trial.

About the Author

Marc Lanzkowsky, Esq. - 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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