Your clients have no idea what to expect at trial. A trial can be very intimidating and scary for your clients, and many will ask you to settle just to avoid a trial. This creates a problem—the defendants’ settlement offer is either non-existent or sucks and you don’t want to settle for a fraction of the case’s true value. What do you do?
Explain the process of a trial and gradually ease your clients’ fear and anxiety. Show your clients exactly what to expect and what they can do to prepare. A little at a time, your clients will see that a trial is not that bad and with preparation and hard work, they might win.
This is the form, “Our Best Advice for Winning Your Trial”, that we use to prepare our clients. Our clients must review and sign his agreement when they sign the retainer agreement. The education process begins on Day #1 and continues during preparation for their deposition and at the pre-trial meetings.
Our Best Advice for Winning Your Trial
Thank you for the opportunity to represent you at trial.
To help you prepare for your day in court, we offer our best advice for winning your trial. Preparation is everything. We cannot win your trial without your help. If you take the time to prepare for trial, you will have a much better chance.
What to Wear in Court
Wear conservative clothes that you would wear to a funeral. Do not wear sneakers, jeans or t-shirts and if you have tattoos, cover them.
Men: Wear dress pants (no jeans), black shoes and a collared white or blue shirt. It is not necessary to wear a suit and tie. If you have a nose or ear ring, remove them.
Women: Wear a dress pant suit or a dress. Do not wear high heels or an elegant gown. Your clothing should be conservative, but not over-the-top. If you do not have the appropriate clothing, call us and we will make arrangements for you.
Length of the Trial
On average, medical malpractice trials last 2 weeks.
Court begins at 9:00 a.m. and ends usually at 4:30 p.m. with a one hour lunch break. You should always arrive early for Court. It is never acceptable to arrive late to Court, as this is disrespectful to the Judge and jury.
How to Behave in Court
Stand for the Judge and Jury: When the Judge and jury enter the courtroom, you should always stand and remain standing until they sit. Standing is a sign of respect.
The Jurors are ALWAYS Watching You: The jury watches everything you do—inside and outside the courtroom. When you are entering the courthouse or walking to lunch, the jurors are watching you and forming opinions of you.
No Goofing Off: Do not goof around, smile or even act casual inside or around the courthouse. The jurors will think you’re not taking the case seriously.
Do NOT Smoke: Do not smoke outside the courthouse. If you smoke, you don’t care about your health.
Bring Family and Friends to the Trial
Family members and friends can sit in the spectator gallery in the back of the courtroom. The presence of family and friends is much better than an empty courtroom. The presence of family and friends in the courtroom is important, as it shows the jurors that the outcome of the trial is important to a lot of people.
How to Prepare for Your Testimony
Study your deposition transcript as often as you can. Have a friend/spouse read the questions in the deposition transcript to you and ask them to make sure that the responses that you give are consistent with your deposition testimony.
If there is even a slight inconsistency between your deposition testimony and trial testimony, the defense attorney will accuse you of lying during cross-examination. We never want this to happen.
How to Testify at Trial
3 Rules for Your Testimony: When you testify, follow these 3 rules:
- Make eye contact with the jurors,
- Do not look at the floor or ceiling or away from the jurors,
- Keep your hands away from your face and do not fold your arms.
Eye contact is a sign of honesty. You should always have constant eye contact with at least one juror during your testimony. When you look down, up or to the side, this will be perceived by the jurors that you are either lying or being evasive. Don’t do this!
When you cover your face with your hands or fold your arms, this is a sign that you are hiding something or taking a defensive posture. Keep your hands on your knees.
Be Yourself: Don’t be afraid to smile or tell a small joke during your testimony. This will create a bond with the jurors.
No Whining: Jurors do not like whiners. Do NOT complain about your injuries or losses during your testimony; it is far better to testify about mini-stories that show how you have overcome your disability.
Avoid Drama: Do not be overly dramatic when you testify. Crying and emotion is okay, but only if it is real. Jurors do not like phony displays of emotion.
Tell Stories: Think of 60-second stories that show how you’ve overcome your injuries and losses. Jurors LOVE STORIES during your testimony.
Jurors love positive stories. For example, an injured client testified that he discovered that his fiancé truly loved him through the care that she provided during his rehabilitation.
Don’t Fight with the Defense Lawyer: During cross-examination, do not argue with defense counsel—you’ll never win. If you make a mistake, admit the mistake and make no excuses.
Do not grimace or scowl at the defendants or defendants’ counsel. Remember, jurors are always watching you.
Beginning of the Trial: Jury Selection
The first day of the trial is jury selection. During jury selection, the attorneys ask questions of 8 prospective jurors who are randomly selected among the 40-60 prospective jurors seated in the spectator gallery in the courtroom.
Jury selection begins by the plaintiff’s lawyer asking questions of the prospective 8 jurors and when finished, the defense lawyers question them. The lawyers ask the prospective jurors about their family and employment background, experience with medical malpractice, and their familiarity with the injuries and medical issues that are relevant in the lawsuit.
By the end of the first day, we have usually completed jury selection and accepted 8 jurors. The trial usually begins the next day with opening statement and the presentation of your witnesses, i.e., doctors, expert witnesses, co-workers, etc.
Challenge for Cause: The goal of jury selection is to identify prospective jurors who have a bias in favor of the defense (i.e., “My daughter is a doctor” or “I hate people who sue”) and remove them from the jury. For those prospective jurors who have expressed a bias in favor of the defendant, they can be excused from jury service with a “challenge for cause”.
A challenge for cause is made outside of the presence of the prospective jurors and the Judge will make a decision to accept or reject the challenge for cause. Occasionally, the attorneys agree that certain prospective jurors are so biased or unable to serve that they will not be acceptable jurors and agree to excuse them by stipulation.
Peremptory Challenge: After the attorneys question the prospective jurors, you have the right to excuse up to 4 of the prospective jurors (known as a “peremptory challenge”). You can excuse a prospective juror without giving any reason with a peremptory challenge.
A peremptory challenge is made by the lawyers outside of the presence of the prospective jurors. Before exercising a peremptory challenge, we will ask you if you have a strong feeling against any of the prospective jurors. Your intuition and gut instincts are usually right and we will excuse the prospective juror(s) that you don’t want to serve on the jury. We always try to save at least 1 peremptory challenge.
Alternative Jurors: 2 of the jurors will be selected by the Court as “alternate jurors”. Occasionally, jurors are excused from jury service during the trial due to health reasons or unexpected emergencies. The alternate jurors serve as substitutes for the other jurors, when that occurs.
The alternate jurors will be excused from jury service at the conclusion of the defendants’ “case in chief” if there are at least 6 jurors remaining in the jury.
First Week of Trial: The Plaintiff’s Case in Chief
During the first week of the trial, we will present the testimony of our witnesses (a/k/a “case in chief”). These witnesses consist of a combination of medical witnesses and lay witnesses, such as your co-workers, family and friends. By the end of the first week, our “case in chief” is usually completed and we rest our case.
Second Week of Trial: The Defendants’ Case in Chief
Usually, the defendants must present the testimony of their witnesses during the second week of trial. This consists of the defendant and their expert witnesses.
Once the defendants are finished presenting the testimony of their witnesses, the Judge will excuse the two alternate jurors, and give instructions on the law to the remaining 6 jurors jury (a/k/a the “jury charge”).
Following the instructions on the law, the jury will then be sent to the jury deliberation room to begin their deliberations and answer the questions on the Verdict Sheet.
The verdict of the jury does not have to be unanimous–5 out of 6 jurors must agree on the questions on the Verdict Sheet.
The first 2 questions on the Verdict Sheet ask whether the defendant was negligent and if so, whether the negligence was a substantial factor in causing the injuries/losses.
Was the defendant, James Smith, M.D., negligent?
___ YES ___ NO
Was the negligence of defendant, James Smith, M.D., a substantial factor in causing the injury of the plaintiff?
___ YES ___ NO
Once the jury agrees upon an answer to the questions on the Verdict Sheet, the foreperson of the jury informs the Judge that the jury has reached and verdict. The Judge asks the jury to enter the courtroom and announce the answers to the questions on the Verdict Sheet. This announcement of the jury’s verdict is the end of the trial.
What You Should Know about Expenses
Trials are very expensive and often double, or even triple, the costs of your case. A medical malpractice trial is a “battle of the experts”. To give you the best chance of winning, we only hire the best expert witnesses, but they aren’t cheap. Each expert’s fee just for their time in court will typically range from $10k to $25k and that does not include their fee for preparing for trial.
You have the right to request a list of costs (a/k/a disbursements) at any time. The list of costs lists each expense incurred in your case, the date of the expense and the amount of the expense; you even have the right to view each invoice if you wish. If you have any questions, we will be happy to meet with you to explain why each cost was incurred.
Our Advice for Easing Your Anxiety
Everyone experiences stress and anxiety during trial. This is perfectly normal and we would be concerned if you weren’t having any stress at the time of the trial. If you are feeling stressed out, we can help you.
There are things we can do to help you, including (if necessary) informing the jury during jury selection that you may not be present for the entire trial. Rest assured, we can handle most of the trial without your presence in court, if necessary.
Why We Practice Law
Thank you for joining us in this quest to stop medical injustice. Your lawsuit will help improve the quality of medical care and hopefully avoid the same thing from happening to other patients. We take this responsibility seriously and we are grateful for this opportunity.
But we cannot win your trial without your help and cooperation. We encourage you to keep this document, read it often, and let us know if you have any questions. We are confident that, with your help, we can win your trial as part of a team effort.
Read and Sign this Agreement
Please sign this agreement where indicated, in duplicate, keep one original for yourself and provide an original to John H. Fisher, P.C., 278 Wall Street, Kingston, New York 12401 (attn: Corina Skidmore)