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926 Coolidge Boulevard, Lafayette, Louisiana  70503

Phone:  (337) 235-2405, Fax:  (337) 235-0965

THE DEFENDANT PHYSICIAN AT TRIAL

 by
 Marc W. Judice
 JUDICE & ADLEY
926 Coolidge Boulevard
Lafayette, Louisiana 70503-2434
 337/235-2405

 

The Medical Review Panel has met and rendered its opinion,  suit has been filed, depositions have been taken, and your case is scheduled for trial.  The purpose of this article is to provide a physician who is preparing for a trial with insights into the trial process and suggestions for enhancing the physician's effectiveness throughout the trial. 
Having tried numerous jury trials on behalf of physicians, it is my opinion that the defendant physician is the most important witness in his/her defense.  With this in mind, it behooves the physician to maintain a positive and professional orientation and appearance throughout the entire trial.  This includes not only the time testifying in the witness chair, but also the time sitting with the defense attorney at the defense table while other evidence is being presented.  It also includes breaks during the trial wherein the physician will be seen walking through the hallway or any other place by members of the jury.  At each sighting of the physician, the jurors will consciously or subconsciously evaluate the physician's actions, demeanor and words.


Never speak about the case in public or make a careless comment that you do not want the jury to overhear.  Be vigilant in the courthouse.  Always be aware of who is watching and who is listening.  I remind my physician that a jury will be watching his/her each and every move.  The jury will be watching the defendant physician while testifying, of course, but will also be watching him/her intently while other witnesses are testifying, especially when the plaintiff is testifying.  Likewise, the jury will observe and judge the physician in the hallway during breaks and at other moments when the trial is "in recess."  A defendant physician is under constant evaluation.  Unspoken communications often affect the jury's interpretation of the physician's spoken communications.  With this in mind, I remind my clients at trial to avoid emotional outbursts or negative facial expressions.  A defendant should maintain his/her composure at all times.
Jurors expect physicians to remain cool under fire.  Jurors feel that physicians have in their hands the lives and well being of patients on a daily basis.  If a physician appears rattled or unable to control his/her demeanor while testifying or observing someone else testify, it is my opinion that jurors will subconsciously think the physician may have "reacted to the pressure" during the medical situation which is the subject of the lawsuit.  This may lead the jury to conclude that a lack of control under pressure may have influenced the physician's judgment, clinical decisions or surgical decisions in treating the plaintiff patient.  Therefore, a physician should remain composed and calm during the trial, both while on the stand testifying and, as importantly, whenever the physician is where a juror may observe his demeanor or overhear the physician's comments.


Also, a physician at trial should look like a physician.  First impressions are extremely important.  Although fashionable, I discourage wearing a gaudy sport coat, wild slacks or excessive jewelry.  Lawyers in a courtroom deal only with appearances, inferences and communication.  Appearances very often affect the impact of the spoken word.  Therefore, I strongly recommend that physicians dress in a conservative fashion.  My preference is a dark navy suit with a red tie.  I like wingtip shoes as opposed to tasseled loafers.  When the physician is in the courtroom arena, it is important that the jurors focus on the physician's medical decisions and the rationale for those decisions.  The impact of the physician's case will be diluted if a juror is distracted by the impression a physician makes by his dress or demeanor.
When in the witness chair or at the defense table, do not slouch or lean back in a reclining chair or engage in distracting activities while other witnesses are testifying.  Remember, the twelve jurors are continually assessing and evaluating the physician and his/her attorney at every opportunity.  Human nature being what it is, jurors will be influenced by a physician's  slouching, appearing casual or exhibiting inappropriate demeanor at the defense table.  The jury may interpret this as arrogance, indifference or an uncaring attitude.  Jurors will punish this type of attitude.  Why give this advantage to the opposing side, when it is within the physician's ability to prevent it?


Additionally, a physician should remember when testifying at trial (as distinguished from testimony at a deposition), that the physician is speaking and addressing laymen jurors.  In a deposition, I want my physician addressing other physicians of his specialty when answering questions.  At trial, the objectives change completely.  At trial, I want the physician communicating with laymen jurors.  Therefore, whenever possible, and without appearing awkward, the physician should, when discussing intricate or detailed matters concerning a course of medical treatment, look at the jury and make eye contact with the jurors.  Explain to these people why you did what you did.  Communicate to the jurors that you applied your education, experience, and knowledge to the plaintiff's treatment.  There is no better way to know how you are communicating with a jury and what they are understanding than to look into their eyes while covering salient and cogent points during your testimony.  Your purpose at trial is not to convince the judge (unless there is no jury), certainly not to convince the plaintiff or plaintiff's attorney, nor the minute clerk, nor the bailiff.  Your sole purpose in testifying is to explain and get across your thought process and rationale for your medical treatment decisions to the laymen jurors who are going to make the decision in your case.  Yet, do not be condescending to the jurors.  Do not say things such as "you, the jury, probably do not understand."  Simply explain your position and rationale.  Also, recall that jurors generally are not hostile to physicians.  Treat them with respect and they will listen to your case.
Jurors in medical malpractice cases take jury service very seriously and are very interested.  Juries will appreciate your taking time and making a good effort to explain to them the mental process you used in making the medical decisions which are the subject of the case.  Furthermore, jurors appreciate the deference that a physician gives them with his/her explanation and his/her eye contact.  Let the jurors know that you know they are the decision makers.  Jurors are more interested in preventing injustice than in providing justice.
If you have never been in a courtroom, before your trial, visit one.  Walk around, sit in the witness chair, sit in a juror's chair, get a feel for the courtroom environment.  The courtroom should not be a mysterious place to you when your trial starts.
Understand what the theme of your defense is.  Have your attorney present to you his outline for the case, i.e.,  what he intends to present, in what order and why.  Discuss with your defense attorney what you feel should be presented, how it should be presented and why.  Regard the trial process as an academic experience and do not become defensive, as this may be interpreted as arrogance. 
Do not be afraid to display compassion for injuries sustained by the patient who is bringing the suit.  Be very careful not to attack a plaintiff who is, like the jury, a layman.  If you speak harshly about the plaintiff or belittle the plaintiff's testimony or plaintiff's understanding, you will appear to be putting "the little one" down and juries will instantly go for the underdog.


In summary, jurors serving on a jury take their jobs seriously and want to prevent an injustice.  Treat them with respect and communicate with them.  Always be aware of your posture, gestures, comments and appearance at all times, whether in the courtroom, in the hall­­­­, or anywhere the jurors can and will observe you.  Trust in the system and avoid a defensive posture.  What you did in treating the patient was reasonable.  Simply present it to the jury, and the defense of your case should be successful.

 

 

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