Part 1 of 2

In my last column, we discussed case settlement offers and the complex calculations that both parties make when deciding whether to go to trial. If a settlement amount is not established, a trial date will be set, and both parties prepare for a fight to the verdict (though settlement may still be negotiated during the trial itself). In this column, we’ll talk about what to expect at trial and review the general sequence of events.

Know that the road to trial—as well as the trial process itself—may take many years. In some states, there is a financial incentive for plaintiff’s attorneys to drag out high-value cases because pre-judgment interest accrues on any judgment in their favor, with accrual usually going back to the date of the alleged injury. In Rhode Island, for example, the annual rate is 12 percent. In Illinois, HB 3360 (under the governor’s consideration now) would award 9 percent per annum pre-judgment interest. As a result, a multimillion-dollar award for an injury that occurred many years ago could yield a significant amount of pre-judgment interest for the plaintiff.

One source of stress is sitting through the trial itself. Defendant physicians are usually expected to attend the trial in person. (This assumes that in-person trials are required—COVID-19 has put many jury trials on hold nationwide.) Even when attendance isn’t requisite, from the jury’s perspective, a defendant’s absence paints the picture of an uncaring or egotistical physician who couldn’t be bothered to break away, barring any significant extenuating circumstances. Trials often last for more than a week; complex cases may last more than a month. Time away from work is distressing for many physicians whose income is dictated by patient volume or hours worked. Aggravation compounds when trial dates are changed at the will of the court, upending carefully laid plans for at-work coverage, childcare, vacation time, and even travel arrangements if the trial is occurring at a prior practice location. The inconvenience and lack of control can be a great source of distress for the physician.

Jury Selection

Once the trial finally begins, your attorney is your guide. The first order of courtroom business is jury selection. As attorneys and insurers know all too well, factors such as the jury pool ZIP code can alter both the value of a case and the likelihood of a verdict for either the defendant or the plaintiff. Although these factors are known and predictable, selection or rejection of individuals who may be perceived as likely to lean more toward one side than the other is critical.

Potential jurors are called up for jury duty and assembled in court on the day trial is set to start. Depending on the court and pretrial agreements, six to 12 jurors are typically needed, plus two alternates. Individuals are called up to the jury box by the court clerk, then the judge gives instructions regarding the kind of case it is and what types of beliefs or relationships might make for bias on the potential juror’s part.

Then begins the process of voir dire (“to speak the truth”), during which the attorneys and judge question potential jurors to uncover any potential bias toward one side. Each attorney can ask the judge to dismiss a juror “for cause,” meaning there’s a strong reason the person might be biased. For example, the juror might personally know the defendant or plaintiff or may be a nurse or doctor themselves. The judge rules on each of these requests. When a potential juror is dismissed, another is called up from the pool. Each attorney also has an agreed-upon number of “peremptory challenges,” which permit them to remove a juror without explanation as long as the reason doesn’t involve race or sex. Attorneys use these challenges strategically, each hoping to assemble a jury as sympathetic to their side as possible. The voir dire process can take hours or even days.