The Good, Bad, and Ugly in Medical Malpractice Trials/Articles/CLM Magazine

May 26, 2017

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Experienced defense trial attorneys and claims professionals know that for many medical malpractice cases that go to trial, the line between winning and losing is razor thin. Sometimes it’s a nuance that seems insignificant that pushes the jury over the threshold. Dancing through the minefield of possible problems in each trial can be tricky, and as we all know, one false move means that’s it.

Voir Dire
The first chance to make a first impression with the jury, of course, is during voir dire. While the focus of the defendant’s voir dire inquiry obviously should be to identify potentially harmful jurors, it also is an opportunity for the jury to meet the defense counsel and defendant, to preemptively discuss the damaging or harmful issues that the jury will hear, and to address other case problems or issues. The defendant’s physician, properly prepared before trial, should understand that every move he makes in front of the jury will be scrutinized, so his conduct during voir dire can have either a negative or positive impact on how the jury perceives him. Defendants who appear bored, uninterested, or angry risk losing the jury’s sympathy. The physician who is “on trial” should sit up straight, pay attention, make notes from time to time, and avoid constantly leaning over to defense counsel to comment on the answers given by the jury. He should smile at the jury when introduced or when any “funny” comment is made by a juror, and should not shake his head angrily when a juror or plaintiff’s counsel says something with which he disagrees.

Likewise, defense counsel needs to pay attention to responses given by jurors, and should never embarrass a juror. A simple mistake at this point can taint the jury substantially. People make value judgments about others within the first few seconds of meeting. Defense counsel who act arrogant, condescending, or cocky (and defendants who appear aloof or make comments about jurors loud enough to be heard by others) may have already doomed their cases.

Good: Physician sits up attentively and makes friendly eye contact with jurors.
Bad: Physician or defense counsel stares down jurors angrily as they answer questions.
Ugly: Physician audibly asks, “What the hell do these people know about medicine?” as some jurors describe their own medical care encounters.

Opening Statements
Some studies suggest that jurors largely make up their minds about cases after opening statements. Therefore, defense counsel should avoid long-winded explanations about how the jury system evolved from the Magna Carta, or make proclamations that opening statements “aren’t evidence.” Instead, they must tell a compelling story by addressing the important defense points right up front, then finishing strongly. Use exhibits where allowed, since jurors get more from what they see than what they hear. Avoid speaking in medical or scientific terms that won’t be used frequently during trial, hit the highlights of the weak issues in the case, and explain how the evidence will strongly address those topics. Most importantly, avoid boring the jury.

Jurors should understand from the opening statement that the evidence will support a defense verdict, but they should not be challenged with a demanding statement from counsel that they will be “duty-bound” to return a defense verdict. If you give them such a challenge, they may focus on evidence that allows them to reject that demand. Likewise, jurors do not like promises that are not kept. If you tell them that they will hear certain evidence but then they do not, they will take that out on the party making false promises.

Good: A compelling story with a PowerPoint presentation of key defense exhibits.
Bad: Wasting the jury’s time with “thanks” with regard to their service, or a discussion about the importance of the jury system.
Ugly: A disjointed statement that has no flow, is simply read to the jury from a podium without eye contact, makes too much use of technical words, and demands a defense verdict from them at the end.

Trial Testimony
The way defense counsel handles witnesses who appear live at trial also plays a role in how credibly he is viewed by the jury, as counsel’s demeanor may give jurors subconscious clues about him. Trials obviously are adversarial proceedings, so the jury expects a certain amount of tension, if not outright combativeness. However, the defense should avoid making this its theme. There is no reason to be aggressive with children or witnesses who don’t hurt the case. No cross-examination should be longer than necessary to get the concessions you need. Jurors appreciate any attorney who gets to the point and sits down.

On direct examination with “friendly” witnesses, defense counsel should take time to articulate questions carefully and in an understandable manner, and the witness should have been substantially prepared pre-trial to keep answers short, appear friendly, and make eye contact with jurors. Be sure to address any issues that you know plaintiff’s counsel will jump on during cross-examination. If plaintiff’s counsel tries to address those difficult topics again with the witness thereafter on cross-examination, an “asked and answered” objection will almost certainly be overruled, but will remind the jury that they have heard it before, and plaintiff’s counsel is re-plowing old ground.

The hardest thing for any defendant physician at trial is being called adversely by plaintiff’s counsel or being cross-examined. More effort should be spent preparing the defendant for that part of the trial than almost anything else, and should include several mock cross-examination sessions. The defendant physician must come across as honest and with nothing to hide, and give the appearance that he can confidently answer any question posed to him by plaintiff’s counsel. He should listen carefully, one question at a time, and not try to figure out where plaintiff’s attorney is going with a particular line of inquiry. If the defendant starts worrying about what the next question will be, then he will lose focus on the question before him and his answer will reflect that. Too many defendants have made themselves look bad by making small mistakes, such as calling plaintiff’s counsel by his first name, cutting him off as he asks questions, yelling at him, or giving long-winded answers that are non-responsive. It all adds up to death by a thousand cuts.

When cross-examining witnesses, even the most partisan or argumentative of them, it’s important that defense counsel stays calm, takes the high road, and avoids getting into the fray in order to maintain a more favorable view by the jury. Let the witness demonstrate his own combativeness and unwillingness to answer responsively. The jury will pick up on it. You can point out occasionally (and politely) when the witness has not answered the question that was asked. A few subtle reminders to the jury don’t hurt. If you must use that age-old (and fun) tactic of presenting a prior inconsistent statement to the witness from his deposition, make sure that you have clearly articulated the question at issue in a manner that does not allow the witness to worm his way out with a response of “That’s not what you asked.”

Good: Defense witnesses who appear truthful, are responsive to questions posed of them, and who don’t natter on. Defense counsel who get concessions from plaintiff’s witnesses with short and succinct cross-examinations.
Bad: Defense witnesses who don’t listen to the questions asked on cross-examination or who get argumentative. Defense counsel who wastes time or antagonizes witnesses who have little damaging testimony to offer.
Ugly: Defendant who responds to plaintiff’s attorney with something like “Listen carefully, Jim, and I’ll try to explain it to you again since you obviously just don’t get it.”

Experts
Many, but not all, cases turn on the “battle of experts.” Choosing a defense expert who is personable, intelligent, experienced, and, most importantly, credible, is key. Jurors are never overwhelmingly impressed by a recitation of an expert’s curriculum vitae, so don’t waste too much time on that. If there is some highlight in the defense expert’s experience that substantially differentiates him from the plaintiff’s expert, then focus on that, but a discussion of background and experience that takes more than five minutes is likely to bore the jury. Although many extremely well-qualified experts are foreign-born, it is nevertheless important to choose one whom the jury is able to understand. If your expert has an overwhelmingly strong accent or some difficulty with English, then you can quickly lose whatever benefit there may have been to calling that individual.

A good defense expert should be someone who is friendly and personable, while still carrying an air of authority. He should be able to teach the jury without talking down to them. Whenever possible, ask the court for permission to allow your expert to come down off the witness stand to demonstrate a device, use a board to make anatomical points, or write on a large trial pad. This helps break down an artificial wall between the jury and the witness box; brings a good, friendly expert closer to the jury, which allows him to develop a better rapport with them; and further enhances his credibility because of the confidence he has in making key points right in front of the jury.

Cross-examining plaintiff’s experts is probably the one point in trial where defense counsel can be more aggressive. The jury realizes that the expert is being paid to be there, so they generally anticipate a bit of a battle. Questioning experts about fees and the amount of income they make from offering testimony is a long-standing practice, but probably adds little to the case.

Although many defense experts are experienced and savvy enough to handle the rigors of cross-examination by plaintiff’s counsel, one thing that they should be encouraged to do is to be clearly responsive to questions posed of them before they go into their explanations. Quite frankly, the majority of experts who are asked a simple yes-or-no question respond with a long-winded explanation. When plaintiff’s experts do that, defense counsel can respond with a polite but semi-sarcastic “So what’s the answer to my question, then, doctor?” The jury will quickly figure out that the expert won’t even answer the simplest question with “yes” or “no” and will tire of that tactic quickly. On the contrary, in order to establish your own expert’s credibility, he should be encouraged to answer the “yes” or “no” part of any question posed on cross-examination first, then elaborate. Plaintiff’s counsel will try to cut him off before he says more, to which the expert can respond with “May I explain?” If plaintiff’s attorney allows him to do so, then the witness looks cooperative and responsive while still getting to give the explanation helpful to the defense. If plaintiff’s counsel does not allow the explanation, then the jury will wonder why not, figuring that it was probably damaging to the plaintiff’s case.

Good: Defense expert smiles, answers questions without long-winded responses, steps down out of the box and uses an easel to demonstrate key anatomical issues while also being responsive on cross-examination.
Bad: Defense expert uses too many medical or scientific terms, speaks rapidly and in long statements, and doesn’t appear to be listening to the cross-examination questions.
Ugly: Defense expert answers the simple cross-examination question “What does the abbreviation ‘CVA’ stand for?” with a 10-minute explanation of the vascular system.

Closing Arguments
It has been said that you can’t win a case in closings—but you sure can lose it.

Once again, defense counsel should get right to the point. It is fine to quickly acknowledge the jury’s service and to thank them, but don’t belabor the point. Likewise, if closings are limited by time, then it can be helpful to tell the jury that you won’t use all of your time (if the case is significantly complex, you may need to, of course). This approach passes along another subtle message: You are confident about your defense and can sum it up quickly.

Like other parts of the case, use demonstratives when available, and move around the courtroom a bit, if the court allows. Jurors drift off quickly if an attorney stands rigidly at a podium, but their eyes will follow you if you walk around, helping to keep their attention. Defendant physicians, of course, should remember that the jury is always watching them.

Good: An argument that hits the key points, ties the case to some “theme” that the jurors can understand, and is delivered calmly but passionately with demonstratives, without reading, and by counsel who makes eye contact with the jurors as he walks past the jury box.
Bad: Standing at a podium and reading the argument from a prepared script in a monotone voice.
Ugly: An argument that spends a quarter of the time rehashing the importance of the jury system and thanking the jurors, followed by a summary of the case that is disjointed, delivered in a halting, stuttering manner without ever looking at the jury.

Deliberations
Once the jury starts deliberating, there is little more that defense counsel can do except wait for the verdict. Of course, there is always the possibility that the jury will send out questions to the judge. When they do, assess them as follows: