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

Ilene R. Brenner, MD


January 18, 2011

In This Article

More Tips to Help Your Cross-Examination

Stay cool, even if the plaintiff's attorney is deliberately argumentative. Do not parry with them.

Avoid condescension. Hear in your head the difference that this simple phrase makes if said sarcastically or not: "Sure you can." Juries don't like sarcastic doctors. Never sound like you are annoyed at the process, even if you are.

Use the 3-second rule when answering questions. Because you have to assume that every question has a purpose, then your answer is going to be used against you somehow. Don't answer too quickly. Wait 3 full seconds before responding.

In the same vein, assume that any diagram that the plaintiff's attorney gives you to look over will have something taken out of context. Read every single word on that page. If pressed, ask for extra time. No juror will hold it against you that you want to be careful to read and understand anything put in front of you. Jurors like doctors who are methodical and considerate.

Know every word in your deposition by heart. Expect the plaintiff's attorney to ask you a question that will make your answer seem contrary to your deposition, implying that you have changed your testimony. Never change your testimony. When the plaintiff's attorney pulls out a few lines of your deposition, skim the pages before and after to place it in context. If you know your deposition better than the plaintiff's attorney, you can say something like, "My testimony hasn't changed because if you go a few pages prior to that one, you'll see...that explains exactly what I just said."

Don't lie! This should be obvious, but a surprising number of witnesses on the stand lie. Don't let that be you. Even if you haven't committed malpractice, if you are caught in a lie -- no matter how small -- the jury will not believe another word you say and you are guaranteed to lose your case.

Don't fidget on the stand. Nervousness is to be expected, but doctors should be perceived as calm, controlled, and capable. Fidgeting, biting your nails, taking your glasses on and off, twirling your hair, and so on can irritate the jury, or worse, make you look less competent.

Look at the jury when answering questions. If that makes you uncomfortable, pick a spot on the wall just above the middle juror -- that will make it seem that you are focused on the jury and will help them connect to what you are saying.

I hope that nobody needs any of this advice, but statistically, every doctor gets sued at least once in their career. And you can't let the system take over. You need to be proactive to be the best defendant possible.


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