Part 2 of 2
In Part 1 of this two-part series, I discussed the sequence of events at trial and what a defendant might experience in the process. In this article, I’ll discuss how to put your best foot forward at trial, testify well, and be your own best secret weapon.
Explore This IssueACEP Now: Vol 40 – No 07 – July 2021
After deposition, there will likely be a long period in which you do not have to actively participate in activities relating to your case. Your attorney will be working behind the scenes, and you may occasionally be updated or asked to review something. This period may last months or even years. It is normal and healthy to try to put litigation on the back burner during this time if you can. But once a trial date is set, start strategizing with your attorney about plans to adequately prepare to appear and testify at trial. Here are some general principles.
Know Your Chart, Know Your Deposition
Knowing the intricacies of your medical record was essential to performing well at your deposition; knowing both the medical record and your deposition testimony is key to being a strong trial witness.
Your chart will be used as an exhibit, presented to the jury, and projected on a large screen. Once on the stand, you will likely be taken through the chart word by word, line by line, in exhausting detail. The attorney will pore over minutiae that seem to have no real bearing on the medicine of the case. (It bears repeating here that the trial is largely not about medicine; it is about convincing a nonmedical jury to pick a side.) The plaintiff’s attorney will take any and all opportunities to disparage your care, and they will use any charting errors or discrepancies to paint you as hurried, uncaring, unprofessional, or incompetent. It is important to know where the weaknesses in your chart are and how you will address these.
Likewise, you must carefully review your deposition testimony; your attorney will give you a printed copy of it. It is critical that you stay consistent with what you testified to under oath at deposition, even if it was years earlier. Discrepancy at trial will lead to the plaintiff’s attorney reading your deposition words back to you, asking, “Were you lying then, or are you lying now?” If you have come across new evidence or have had your memory refreshed in some way since the time of deposition, you can testify to that—but it is important that you not outright contradict yourself. The jury is more likely to side with you if they view you as sincere, consistent, and trustworthy.