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.
Even when you are not on the stand, the jury will be sizing you up. Dress appropriately but not in an overly showy or expensive fashion. You may see the jurors outside of the courtroom at times, such as after you have all been dismissed for a recess or as everyone files in for the morning. You might pass them in the hallway or see them in the bathroom. Do not speak to them, but do keep your demeanor warm.
When in the vicinity of the courthouse, always maintain your composure. Jurors may be watching you as you walk into the courthouse before the day starts, and they may see you exit the grounds at the end of an exhausting day. Wait until you are far away before you fully relax your guard or speak in a normal volume to your attorney about the case.
The jurors will also watch you as you listen to other witnesses give uncomfortable testimony. They will naturally want to gauge your reaction to it. If you make faces, appear angry or exasperated, or even appear disinterested or bored, the jury will register it. Try to appear engaged but dispassionate, always exuding a sense of calm and mastery over your emotions. If you are permitted to take notes, do so—this makes you look engaged and also may help you keep your emotions at bay. Maintaining composure is easier said than done at times—you are human, after all—but a little effort at constraint will go a long way.
Practice, Then Perform
It is very important that you and your attorney spend time rehearsing what your role will be at trial. The experience of having a plaintiff’s attorney badger you with relentless questioning in front of a judge and jury is daunting, but it is something you can prepare for and get better at with practice.
Trial testimony is markedly different from deposition. You want to convey the same competence and confidence—but while at deposition you wanted to limit your answers, at trial, your aim is also to educate the jury about your care and decision making. Though the plaintiff’s attorney will try to corral your answers into the narrow scope of their questions, when possible you can try to expand on your answers a bit to help the jury see your side. If you cannot do that without seeming argumentative or disrespectful, you will have an opportunity to explain further when your own attorney questions you. Your words, tone, and demeanor should exude both knowledge and caring. Know the central themes of your defense, and practice answering difficult questions in a way that supports those themes. Keep your language at a level the jury can understand, explaining any medical terms you use, and always emphasize how the care of the patient was at the heart of all your decisions.
Even your body language should support your testimony. Look toward the jury when appropriate. Speak directly to them, even turning your body slightly toward them in your chair, when you periodically try to engage and teach them. Spend some time with your attorney analyzing and working to correct any distracting habits of speech or nervous behaviors you may have. Envision this as a performance—practice makes perfect and also mitigates anxiety.
A plaintiff’s attorney may try different tactics to rattle you. (Your attorney may personally know the plaintiff’s attorney or their reputation, which may help you strategize in advance.) If their demeanor is threatening or angry, rise above it, knowing it is calculated to manipulate your emotions. They hope to make you angry or flustered; do not let them. Stay professional and composed. On the other hand, if the attorney appears to be kind and complimentary, do not get lulled into complacency. You will need to practice how to stay on your toes, thinking strategically, trying to anticipate where a line of questioning is going, and getting ahead of it when possible. Testifying can also be a test of endurance, as you may spend many hours on the witness stand. The more skilled you become at performing under these conditions, the longer your mind and body can stay focused on the task at hand.
The essence of testifying well at trial is that you want the jury to come away wishing that you were their doctor. Leave your ego, anger, and bitterness about this process at home. Bring to the stand only your best self while maintaining your vigilance under questioning. Be only the kind, compassionate, communicative, and knowledgeable physician who patients would want in their own time of need, no matter what gets thrown at you. Embodying that physician is not hard—it’s what you bring to work every day. The real challenge is letting that part of you shine when under atypical stress, answering difficult questions in a hostile environment. Like anything in medicine, this is skill at which you can learn to excel—with practice.
Dr. Pensa is clinical associate professor of emergency medicine at the Warren Alpert Medical School of Brown University in Providence, Rhode Island; associate director (education) of the Emergency Digital Health Innovation program at Brown; and creator and host of the podcast “Doctors and Litigation: The L Word.”