Trial Survival Tips

While the majority of medical malpractice cases do not actually proceed all the way to trial, what happens when your case falls in the minority, and you are faced with the prospect of spending a week or more in the courtroom? No doubt you will spend hours with your attorney preparing the complex details of your testimony and responses to cross-examination. But what about the practical matters?

Things that you would normally take for granted in the course of everyday life can become as perplexing as the intricacies of trial procedure once you arrive in unfamiliar territory. The following is a list of practical tips to help you know what is and isn’t appropriate at trial.

• Be Professional. Spend a moment considering how you want to be seen by a group of complete strangers who will be assigned the task of deciding your case. Then realize that the jury’s impression of you will begin to form immediately, long before you take the stand to testify. The old adage about first impressions applies in full force in this context. Your attire, mannerisms, and overall attitude in the courtroom can go a long way toward establishing an air of professionalism and competence, silently reinforcing your defense.
• Be Courteous. Simple courtesy during the trial process is an important, but often overlooked, component of trial behavior. Your goal should be to maintain a polite, unruffled exterior appearance at all times. This may be more difficult than it sounds. For example, many courtrooms have relatively close quarters, requiring the opposing sides to sit beside or in close proximity to each other. In addition, the jury box is typically situated to give the jurors a close view of the parties and counsel; therefore, even the slightest bad behavior can be easily observed. The best way to handle the situation is simply to be polite to those around you, including the plaintiff and his/her counsel.
• Be Quiet. A trial is not the proper venue to approach the plaintiff to express sympathy or regret for the circumstances that brought you both to court. This experience is as foreign and stressful for the plaintiff as it is for you, and emotions are likely to run very high at this time. Even a well-intended comment or kind gesture on your part will likely be resented and might even lead to an outburst that could taint the jury. As difficult as it may be, it is vital that you recognize that the time for convincing the plaintiff that you are a nice person and a good doctor has passed, and your focus should now be on convincing the jurors.
• Be Aware. The rules about professional and courteous behavior aren’t suspended during breaks from the proceedings or in transit to/from the courtroom. Remember that the jurors enter and exit the courthouse the same way you do, and they frequent the same hallways and common areas during breaks. Therefore, you must maintain the same composure at these times as you do in court. Be conscious that your conversations and comments during these times could be easily overheard, and use discretion in making phone calls. If you need to confer with your attorney about the court proceedings, do so quietly and in as much privacy as you are able to find.
• Be Respectful. It is important that your attitude and demeanor toward the jurors be respectful and appreciative of their time investment in your case. Standing up when the jurors enter and exit the courtroom is one way to convey this attitude. One word of caution: You are not allowed to speak to the members of the jury and should avoid even the appearance of doing so. While the jury will be instructed regarding this fact as well, occasionally a juror will attempt to strike up a casual conversation outside the courtroom. If this should occur, try to extricate yourself from this situation as quickly, but politely, as possible (i.e., smile politely and keep moving) and inform your counsel immediately. He or she will likely ask the judge to explain the rules to the jury again.
• Be Involved. You can be a great asset to your attorney in defending your case. Your thoughts and opinions on everything from jury selection to the presentation of the medical evidence will be appreciated. In addition, your involvement in the process will likely reflect positively on your image with the jury.
• Follow Directions. Acknowledge the fact that you are out of your element and allow your attorney’s expertise to guide you through your trial experience. If your attorney offers suggestions on any aspect of your involvement in the trial, follow them. Likewise, if you are uncertain about anything, ask your attorney for direction.

While simple, these guidelines will help get you started on the right foot and should make it easier to handle the stress of the trial experience. As you become more at ease with the process itself, you will be a better frame of mind to present your testimony in the best light possible. In addition, creating a good impression before you testify can go a long way toward influencing the jury in your favor.