During the deposition of the plaintiff, it is our recommendation that you have the patient describe the event but do not try to impeach with any information that you have gathered in your initial discovery phase. Impeaching the plaintiff during the deposition with prior inconsistent statements will only allow plaintiff’s counsel to rehabilitate the witness at a break and arrive at a clear reason for the inconsistencies. Typically, plaintiff’s counsel does not conduct a thorough investigation. By the time counsel realizes the numerous inconsistencies at trial, it is too late for any type of rehabilitation.
We typically do not ask for text messages or email communication between the plaintiff and the healthcare provider during the initial discovery phase. Hopefully, the client will have all of this information for you so that you can effectively prepare for the plaintiff’s deposition. If you have asked for this information in discovery, then it will prompt the plaintiff’s counsel to obtain and review the communication with his client and prepare an effective response to the same should there be any negative evidence. This of course is dependent upon the disclosure requirements in your jurisdiction.
Although there are numerous issues to investigate during the deposition, some of the more critical include whether the patient re-appointed on the day of the incident for subsequent visits and what activities they engaged in immediately after the alleged incident and in the subsequent weeks and months thereafter. Depending on the plaintiff’s testimony, it is likely that you will want to send additional discovery to plaintiff’s counsel requesting copies of any debit and/or credit card statements from the date of the alleged incident to the present. Although it is likely that counsel will object to providing this information, you can argue that the same would reveal what activities the plaintiff was engaged in immediately following the incident and up to the present. For instance, if the plaintiff enjoys shopping and going out with friends and she alleges that she can no longer do the same, these statements could provide critical information as to her activities of daily living. In addition, the statements can help rebut any claims of isolation, loneliness, and in some cases, depression depending upon the level of activity. In addition to the activities of daily living, the statements can also provide information as to whether the plaintiff was able to take any vacations or out-of-town travel for pleasure which can also help reduce the damages at trial.
As previously mentioned, we typically ask for credit card statements and debit statements following the deposition after we have established the relevancy of the same through the testimony of the plaintiff. Depending on plaintiff’s testimony, you may also want to obtain the plaintiff’s cell phone records from the date of the incident to the present. These records could provide you with information to either substantiate or rebut plaintiff’s claims that their conducting various individuals confirming the inappropriate action.
Obviously, the information that you elicit in the deposition of the plaintiff will be critical to your defense. As previously mentioned, we are not necessarily trying to impeach the plaintiff during the deposition but are trying to obtain any and all inconsistent statements which may assist us in the cross-examination at trial. In addition, damages can be effectively eliminated or reduced depending upon the various activities that the plaintiff engaged in immediately subsequent to the incident and the following months post-incident.
Once you have completed your discovery and after consultation with you client, you are going to proceed to trial. The first thing that you should know is that this is not going to be your typical jury that you would ordinarily pick in a medical malpractice trial. As most of you aware, we typically try to get a very conservative jury of established older individuals in medical malpractice cases. However, in these types of cases, depending upon the exact nature of the claims, we are also looking for younger males who are more open to the concept that you are innocent until proven guilty and the mere fact that someone has made an allegation against an individual does not establish guilt without substantial corroborating testimony to support the same.
When evaluating a younger person for your jury, you should, if possible, obtain as much information about your jury pool from social media and other publicly available sources, like criminal court records. Oftentimes, the courts will provide you with a list of potential jurors several days before the trial. If this is the case in your jurisdiction, plan to perform a comprehensive research of social media for the jury pool. Frequently, individuals will post their opinions on the #metoo movement, the Kavanaugh hearing and confirmation, and other developments in the media wherein someone has been charged with improper sexual conduct. The positions that the potential jurors take relative to those charges will be very important in your voir dire process and your jury selection.
Of course, the types of jurors that you want will vary depending upon the facts of your case and the age and gender of the plaintiff. The millennials today place a very taxing burden on the defense counsel to explore the juror’s real position on the #metoo movement. Expect the voir dire process to take longer than usual as many jurors may express the desire to answer certain questions in private. Understandably, an individual might not want to volunteer to a room full of strangers that they have been the victim of some sort of sexual assault or abuse. The answers elicited during voir dire must be addressed by defense counsel, which will likely require flexibility in the defense theme at trial. Examples of various themes for the defense will be presented during the presentation.
One of the more critical decisions defense counsel must make when taking the case to trial is whether to have a female attorney cross-examine the plaintiff. Regardless of whether the plaintiff is male or female, defense counsel should explore the use of a female attorney in the cross-examination process. Attorney Floyd always has a female cross-examine the plaintiff in order to avoid the perception that he is overpowering the witness or unfairly asking personal questions that are perceived to embarrass the witness. We have found an effective cross-examination by a female attorney yields benefits in acknowledging to the jury respect for plaintiff’s position but yet a clear strength in defending the healthcare professional against unsubstantiated and often times, unwarranted, allegations of sexual impropriety.
As we typically do in the general realm of malpractice cases, we always evaluate whether our client is going to make a good witness. Often times, the client is so concerned about the negative impact of an adverse judgment on his license, family, and social friends, that he does not make a good witness at the trial. Instead of being confident in his care and treatment of the patient, the provider is confused and weak on his testimony rebutting the incident at issue. If that is the case, you should consider retaining the appropriate consultant to help with witness preparation. Regardless, we always advise the jury that the healthcare provider will not make a good witness as this type of claim is something that he has never experienced, and he did not go to school to learn how to be an effective witness.
By lowering the bar in voir dire and addressing with the jury that this is not a popularity contest, we have set the jury up for any perceived weak testimony by the client and the rationale for the same. There are several strategies that can be utilized at the trial should you have a bad witness, and these will be addressed during the presentation.
Mandi J. Karvis, a partner in Wicker Smith’s Phoenix office, has been practicing for nearly 20 years, defending healthcare clients in professional liability lawsuits, as well as licensing board matters. During that time, Ms. Karvis has tried many cases to verdict in state and federal court. Over the years, Ms. Karvis has developed a niche practice area and has been asked to try cases all over the county involving physicians who have been accused of sexual impropriety with a patient.
John F. Floyd, Sr., managing partner of Wicker Smith’s Nashville office, has been practicing for 30 years, defending healthcare clients in professional liability lawsuits. During that period of time, he has tried over 100 jury trials to verdict. John is board-certified in medical malpractice by the American Board of Professional Liability Attorneys, and he is actively engaged in representation of healthcare professionals throughout the United States.