Chicken soup for the defendant physician

Make sure you understand a question before you answer it. Pause before you answer, and answer only that question; do not volunteer information or guess. Instead, say “I don’t know” or “I don’t recall.” Don’t use hearsay information; be factual and straightforward. Check facts against the record and testify to the best of your memory. Any explanations should be offered in lay terms. Do not look for traps; your attorney should have the skill to ward these off by objecting. If an objection is made, stop talking. Without an objection, you are bound to answer.

Respond to questions in a clear, concise manner. If you feel you have been prevented from giving a full explanation, you are allowed to speak privately with your attorney. If he or she also feels a more complete response is needed, this can be handled after your direct testimony is completed.

Don’t withhold facts to “surprise” the other side at trial unless you are so directed by your attorney. Remember, if you can convince the plaintiff’s attorney, by your testimony, that the chances of prevailing against you are slim, you may be able to avoid trial altogether.

To paraphrase Mark Twain: If you tell the truth, there is little to remember should you have to appear in court later. Exercise your right to read the transcript of your deposition. Read it slowly, make any corrections, and return the corrected copy promptly. Should you have to go to trial, read it again the day before your scheduled testimony.

At trial

If a trial is inevitable, there is little more for you to do if you have heeded the earlier advice. Dress conservatively and be prompt each day. Also be present for jury selection; you may know something your attorney does not about a prospective juror that could help or hinder your case.

The plaintiff will present his or her case first. Some statements may appear to you to be distortions of the truth—perhaps even complete falsehoods. Do not make any gestures that demonstrate your disapproval, such as facial expressions or head shaking. Take notes as freely as you wish for later reference.

The guidelines for deposition testimony also apply to your turn on the witness stand. You will be nervous in the beginning. However, if you know the facts and are confident about your defense, those feelings should pass. This is your opportunity to speak to the jury, preferably in a manner that is clear and concise. Tell your story to the jury, not the plaintiff’s attorney. When it is appropriate, look at the jury as you answer questions. Smile when the occasion arises but, again, refrain from negative facial expressions and body language. An occasional lighthearted statement may be used with caution, but never tell a joke.

I once heard a plaintiff’s attorney say, “Any defendant who is an articulate, bright, well-trained doctor with a good medical background and who tells the truth scares the hell out of me.” Your attorney will be the best judge of your conduct, testimony, and the progress of the trial. Listen carefully to his or her advice. Even during a trial, a settlement may be possible. Discuss the options with your attorney to determine whether this would be the best course after all.

If you “win” at trial, be grateful but not smug; there are medical lessons to be learned from the experience. In most cases, a review of the principles of risk management—with a special focus on future practice—will reduce the chance of an encore performance.