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Understanding the Professional Liability Claim Process: Part 5: What to expect in trial preparation and testimony

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What to expect in trial preparation and testimony

Understanding the Professional Liability Claim Process: Part 5: What to expect in trial preparation and testimony

Our series on understanding the claim process is intended to give you a basic knowledge of the legal process and guidance if you find yourself in the position of defending a malpractice claim.

We wrap up our series with Part 5, a brief overview of what to expect when preparing for a trial and giving testimony.

Part 5: What to expect in trial preparation and testimony

When the day of trial arrives, you will have gone through the discovery process and given your deposition. This experience, however, will not have fully prepared you for what awaits you at trial. In a deposition, there are just a handful of people in a small room, and you are sitting across a table from the questioner. At trial, you will be sitting in a witness box in a courtroom, in front of many people. While it probably won’t be as intense as drama series depict on TV, it can certainly be an intimidating setting.

Preparing for the trial

At this point in the process, your attorney will have a more complete idea of what the witnesses are expected to say at trial and how the defense case will be structured. In the weeks prior to the trial, your attorney will spend a good deal of time with you on the following subjects, in order to prepare you for attending the trial:

Your Testimony. Your attorney will review the facts of the case with you, as you see them. He or she will go over your deposition testimony with you, and any testimony you may have given years before the trial. This is to ensure that you still recall the facts as stated in the deposition or, if your testimony has changed, why it has changed.

Other Witnesses’ Testimony. You may be asked to read the witnesses’ deposition transcripts in preparation. Then, your attorney will focus on asking you questions about the things that other witnesses have said.

Expert Witnesses’ Testimony. Your attorney will ask you questions about the testimony given by the experts who have testified at deposition to assist the attorney in preparing the defense. Part of your job is to educate your attorney concerning what those in your profession do every day, regardless of what an expert may say.

Your Comfort Level. Your attorney will make an effort to point out pitfalls that are expected at trial. This is to make sure you are prepared, to reassure you and to help you feel comfortable with the material before you give testimony. You may even want to make a visit to the courthouse to sit in the witness box before the date of the trial in an effort to help you feel more relaxed when the time comes.

Your Trial Testimony

You’ve spent time preparing and the trial date has arrived. At some point, you will be asked to take the witness stand and the court clerk will swear you in. The questioning—or examination— will then commence. There are three types of examinations:

Direct Examination. In direct examination, your attorney will ask you a series of questions, most of which you have heard before. This part of your testimony is the easy part.

Cross Examination. After your attorney has asked all of his or her questions, the opposing attorney will cross examine you in an attempt to discredit you before the jury. He or she may try to confuse you or may make you angry. It’s wise not to appear defensive in your answers or your nonverbal cues. Do not try to argue with the opposing attorney and, remember, you will have another opportunity to clarify your statements.

Redirect Examination. Once the opposing attorney has completed his or her questioning, your attorney will ask you additional questions, giving you the opportunity to clarify any points that opposing counsel may have prevented you from making during cross examination.

The key to a successful testimony is to keep a level head and calm composure, even when it’s difficult to do. Remember your preparation, stop to think and answer slowly. With any luck, you will not be called to testify again and your trial experience will not be too unpleasant.

Our article series on understanding the legal process includes these informative topics:

Part I: License/Certification Scrutiny

Part 2: Summons, complaints & subpoenas and attorney representation

Part 3: What is the discovery process?

Part 4: What to expect when giving a deposition

Part 5: What to expect in trial preparation and testimony

 

 

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