If you are practicing in a rural area, the availability of personnel or equipment may be an issue in your case. In such circumstances, an expert from a rural institution may be preferable to an expert from a major metropolitan area.
Scrutinize the expert’s credentials and communication style
Most defense counsel who practice in a specialized area of medicine will have access to the curriculum vitae of several potential experts. Review these documents with your attorney and investigate other cases in which the experts have testified.
If neither you nor your counsel has ever met or seen the expert, it may be helpful to explore whether the expert has ever given videotaped testimony. This will help you evaluate his or her physical appearance, demeanor, and general likeability, all of which influence the jury’s response to the testimony.
Remember, the plaintiff’s case is usually presented first. A jury may first be exposed to the facts of your case through the testimony of the plaintiff’s experts and witnesses, including emotional and at times weeping family members. Your expert will therefore need to refocus and reeducate the jury and dispel the opinions rendered by the plaintiff’s experts. To be successful, your expert must be able to create rapport with the jurors to keep them interested in his or her testimony and opinions. In this regard, your expert’s communication skills are paramount.
6. Be steadfast—the courtroom is a fishbowl!
At trial, you will be stared at, evaluated, and judged even while you are sitting in a chair at the defense table well before your testimony. This may seem unreasonable, capricious, and outrageous…and it is! However, until you take the witness stand, the jury has no other source of information about you.
Jurors are naturally curious. They begin to wonder about the case and, being human, may leap to conclusions. To protect yourself against unfair inferences, be mindful of your behavior, and assume that anything you say or do within two blocks of the courthouse will be seen by a juror. Here are some basic courtroom “don’ts,” culled from personal experience:
- Unless you are handicapped, do not park in a handicapped spot, even for a minute to unload a box of documents. A juror may see you and find your action inconsiderate.
- Don’t wear clothing or jewelry that is significantly more expensive than that worn by the plaintiffs or jurors.
- Be serious but not aloof.
- Remember to teach—not lecture—the jury.
- Take advantage of conference rooms.
Important discussions with counsel and experts should take place in private where there is no chance that a juror will accidentally observe or overhear the conversation.
7. Make exhibits informative, not disturbing
The purpose of a trial exhibit is to illustrate or demonstrate a point to the jurors. Any evidence that is presented must be accurate and based on facts already established in the case. The physician should assist defense counsel in the selection and preparation of exhibits. Here are a few tips:
- Make it easy to use. An exhibit—particularly a medical instrument—must be easy to use. Misusing, breaking, or fumbling with it on the stand is not only embarrassing, it casts doubt on the credibility of the witness. Have you ever seen a doctor accidentally fire a surgical staple into his own palm from an “empty” stapler while demonstrating the device in court? (I have.)
- Make it accurate. There are several types of vacuum extractors. If you choose to bring an exhibit—particularly a medical instrument—into the courtroom, it should be exactly the same type that was used in the delivery. Any variance should be insignificant. In a recent case, a plaintiff’s expert intended to use an outdated vacuum device that was rather large and ungainly and appeared to be far more ominous than the device that was actually used in the delivery. The court precluded its exhibition.
- Make sure it is unambiguous. There is great potential danger in using a defense exhibit that can be misinterpreted or reinterpreted to actually support the plaintiff’s position. Fetal growth charts, charts summarizing medical literature, and similar exhibits all have a potential for reinterpretation.
- Don’t send the wrong message. Photographs, medical instruments, and other exhibits can be gruesome or shocking to a jury. For example, if demonstration of a vacuum extractor is not critical to the defense of a case, the device may be inappropriate for courtroom demonstration. The reason? It may cause jurors to feel uncomfortable or place considerable focus on a minor issue. Any negative aspect of a potential exhibit should be evaluated in determining whether the exhibit will be used in front of the jury.