For a number of years the case has been somewhere in your mind, but now it is likely ALL you can think about. If your trial is within the next month, then you are probably getting little sleep, are eating either too much or too little,and are meeting all the criteria for generalized anxiety disorder. This is normal.
Everyone panics before his or her first trial. A million scenarios run through your mind…all bad. I know, it is scary seeing your career flash before your eyes. A jury of your “peers” will soon decide your fate. This lack of control over your own life is unsettling at best and terrifying at worst.
The best advice I can say is “focus on the end-game.” Though the last few years of your life being dragged through the legal system may not seem like a game to you, it may help to view it that way. We all know that the legal system does not dispense justice. He (or she) who has the best attorney usually wins. And there is definitely a chess-type strategy that gets played out before and during the trial.
So what is your role in this game? You need to stop playing defense and begin playing offense. Release your anger. Listen to your attorney. If you were careful to pick knowledgeable and experienced representation, don’t flush your whole case down the toilet by ignoring their sage advice. Their reputation as a trial attorney hinges on winning as many cases as possible. They want to win. So pay attention to what they say. The little details that may seem stupid to you are likely more important than you realize.
This is a little tricky to define, as the “rules” are somewhat different depending on what state and local custom dictates. Nevertheless, the commonalities and differences are worth noting:
How to dress
Professional. Clean. Like you are going to the most important interview of your life (you are).
Some lawyers espouse a brand new suit every day of the trial. Others say a suit everyday, for a woman, is not necessary. In some parts of the country (or even specific counties within certain states), not wearing a suit to court is considered unprofessional. Other locations might find this pretentious and overdone. Thus, consulting your attorney for their opinion is imperative.
For multiple week trials, have one week of unique outfits, and adjust the shirts/blouses/ties the following week with the caveat that the day you appear on the stand should be your best outfit. And women must pay attention to what shoes they wear. Jimmy Choos are no more appropriate than Birkenstocks. Is it ridiculous to assume that a case will be sunk by the wrong shoes? Sure. However, your inappropriate shoes could place you in a negative light in the mind of a juror and create a subtle bias against you. For similar reasons, leave the fancy jewelry or Rolex watches at home. For women, a nice set of pearls (fake is fine) will do nicely. You don’t want to appear too glitzy, but you don’t want to look like today is just “any day.”
When to show for trial
There are different viewpoints on this. Some attorneys tell you to show up every day. Others will tell you to attend only “certain” days of court. There may even be regulations that require you to attend all or certain days of the trial. Therefore, this decision is best left to your attorney.
Some lawyers believe that the more a doctor is in court, the more opportunity he has to screw up, and poison the jury against him. Therefore, those attorneys prefer their clients to attend as little as possible. Others have discovered that juries notice the Plaintiff attending every day, and feel that the defendant (you) should as well. Each scenario is valid. You are best to do whatever your attorney feels is most appropriate.
Again, local customs dictate whether it is appropriate or necessary for a doctor to attend. In some locations neither the Plaintiff nor Defendant attend. Some attorneys like to see the potential jurors (called a “panel”) through your eyes as well as theirs. Others feel your attendance could turn off jurors before the trial even begins. And by being there, you might feel inclined to give your “opinions” that your attorney doesn’t necessarily agree with and doesn’t want to hear.
This is where both sides lay out their case. And often, this is when the jury decides who wins. It is scary to think that the jury has made up their mind so early in the process, but it happens. Frequently.
Plaintiff begins their case
The Plaintiff’s attorney has a number of options for bringing people to the stand. They have their client, their experts, “other” witnesses, and you. Yes, you are a big part of their case. If you play it smart, you can diminish your part in the build-up of their case (more on this later). Oftentimes (and some would argue that it should be all-times), you will be the first witness in your cross-examination by the Plaintiff’s attorney.
Looking at the trial objectively, the Plaintiff’s case begins at a high point. They get to say all kinds of bad things about you. But little by little, your attorney will chip away at their case. The higher they start, the better for them. Therefore, they will often lay out their case beginning with you, at your most vulnerable point. Their hope is that you will be nervous and easy prey in their experienced hands.
Their experts and witnesses will say many things that will support the Plaintiff’s case. Understand this: you won’t win every point. In fact, you will lose a lot of points. However, look at it like a football game. It doesn’t matter who leads at halftime. The winner is determined by who plays best in the second half. In fact, if you manage to win any points in the first half, you should feel very good about how things are progressing.
Defendant begins their case
It may seem unfair that the Plaintiff gets the first shot at you, even before your own attorney. This is not how it appears on television. However, if the Plaintiff decides for some reason not to call you in their case, you attorney will get to question you first; a big advantage.
What is so great about having your attorney’s direct examination of you? It’s easy. Low stress. You get to say everything about your case that the Plaintiff’s attorney “left out.” You get to “teach” the jury certain aspects of medicine. You get to show your personality, your intelligence, and most importantly, that your treatment was in conformance with good and accepted medical practice. The negative aspect of this part of your case is that, for jurors, it is also pretty boring. They know that your attorney is only going to ask you questions that make you sound good. So it is a skilled attorney that can keep the jury awake and expose all the flaws in the Plaintiff’s case.
This ties the whole case together. Trials are rarely won or lost by this time as the jurors have usually made up their minds by now. However, a skilled attorney can manipulate the facts and present them in such a way that a jury might look more at certain facts than others when they go to deliberate.
The judge must “charge” the jury with the law. Both sides must present their “charges” to the judge and the judge must rule as to which points of law the jury must observe to decide the verdict. A skilled attorney can try to convince the judge to accept his requests to charge. This can be what wins or loses your case. Seriously. Why? There is different wording that can be used which can help you win a case even if the jury found some errors on your part.
Next month, we’ll cover the ins and outs of nailing the cross examination.
Ilene R. Brenner, MD, is an emergency physician at Piedmont Hospital in Atlanta, Georgia.