COMMENTARY

Your Malpractice Advisor: Ten Things Never to Do at Your Trial

Ilene R. Brenner, MD

Disclosures

January 18, 2011

In This Article

Introduction

You've gone through your deposition and now your malpractice trial is coming up.

You're pretty nervous, and with good reason. But by paying attention to some key advice, you can be prepared for the cross-examination and help present your case most effectively.

A deposition and a cross-examination have many similarities. First, you are being questioned by the plaintiff's attorney. In both, you have to be careful about what questions are actually being asked and try not to fall into traps. And of course, you must give thorough, intelligent answers that support your case.

However, there are differences as well. For instance, the advice I give for depositions is: "The less you say the better"; for the cross-examination, I'd use this instead: "The more you can explain your defense to the jury, the better."

There are limitations to being able to explain your case, since in many states, your answers are limited to "yes," "no," and "I don't know." If you try to explain something without specifically being asked, it will be struck from the record. These responses may not seem like they could get you into trouble, but be cautious about what you say "yes" or "no" to. Be wary of agreeing with a seemingly innocuous question.

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