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.

Case Presentations

After all of the jurors are selected and sworn in by the clerk and the judge has recited the jury instructions, opening statements begin. The plaintiff’s attorney usually goes first. Although this statement is meant to be more road map than argument, defendants often find listening to it very uncomfortable. It will, however, be followed by your attorney’s opening statement, which will hopefully put you a bit more at ease.

After opening statements, the first witness is called by the plaintiff, whose side is typically presented first. Called one at a time, each witness is sworn in for testimony. Generally, they are either “fact witnesses,” whose testimony provides factual details of what took place, or “expert witnesses,” who render their professional opinions (in medicine, economics, or other relevant area) designed to teach the jury about the matter at hand. Even as defendant, you may be called as a fact witness by the plaintiff, even though most physicians can’t help but bring their expertise into their testimony. (We will discuss more about your testimony in Part 2 of this article.)

During the plaintiff’s presentation, each called witness is first questioned by the plaintiff’s attorney (“direct examination”), after which the defense attorney has time to question (“cross-examine”) them. This questioning is generally limited to topics brought up during the plaintiff’s questioning. The plaintiff then has the right to re-question (“redirect”) the witness, after which the defense can re-question (“re-cross”) if desired. During these examinations, the plaintiff’s attorney may ask the jury to review “exhibits,” or physical evidence, such as medical charts, photographs, diagrams, etc. Exhibits must be approved by a judge prior to being seen by the jury.

Once the plaintiff has finished calling all witnesses, they “rest” their case. Now it’s the defense’s turn. Given how emotionally difficult it might have been for you as the defendant to listen to the plaintiff’s attorney or experts portray you as an uncaring and incompetent physician, you may feel a bit better as your interpretation of the events as presented by the defense become clearer to the jury. The defense’s case proceeds in a similar manner to the plaintiff’s, until the defense also rests. Following the defense’s presentation, the plaintiff may call witnesses to respond to the defense’s case in a “rebuttal.”

Recess and Deliberations

After both sides rest their cases, there is usually a recess during which the judge and attorneys convene to discuss jury instructions, which may vary from case to case. Then everyone reassembles in the courtroom for the “charge to the jury,” wherein the judge instructs them on how to proceed with deliberations. The jury is responsible for deciding what the facts are, and the court is responsible for deciding what the law is.

After the jury is charged, the attorneys make their concluding arguments, and the jury departs the courtroom to deliberate. (In some states, concluding arguments occur before the jury is charged.) At this point, there’s nothing for the defendant to do but wait.

Jury deliberation may take hours or days. Your attorney will instruct you if you need to remain in court while deliberations take place. Once the jurors have reached a verdict, all parties reassemble to hear their decision. If a jury absolutely cannot come to a conclusion, there is the possibility of a “hung jury,” which results in a mistrial. There are numerous other reasons a judge may declare a mistrial, such as the death of a juror, the discovery of juror misconduct, or a fundamental error by an attorney or witness that may prejudice the jury in a way that can’t be easily remedied. In this event, the case may go to trial again in the future with a new jury, or the involved parties may decide not to proceed further.

The Verdict and Aftermath

Receiving the verdict in a court trial is an emotional moment for most defendants. Even when there is a defense verdict (you “win”) and the relief is welcome, it will likely take a long time to put the ordeal behind you. If the verdict is for the plaintiff, the disappointment can be overwhelming. Recall from previous columns that most cases that go to trial are defensible, meaning they’re cases that you and your insurer feel might be won. A verdict for the opposite side can be crushing, and a large award to the plaintiff can exacerbate that.

Any damages to be paid to the plaintiff may be determined in a separate conference, and in some states, the judge may alter this amount when entering their judgment on the decision (their order that the decision be filed in the public record). If there are co-defendants, the jury will typically assign responsibility for each one, though the rules on how this happens may vary by state.

Motions for a new trial may be entered after the verdict if it is felt that the judge made errors that unduly influenced the outcome. A notice of appeal may be filed if one side feels there is a legal basis, which will begin the appeals process.

In my next column, we’ll discuss how to prepare yourself practically and psychologically to deliver effective trial testimony and put your best foot forward.

Dr. Pensa is clinical associate professor of emergency medicine at the Warren Alpert Medical School of Brown University in Providence, Rhode Island; associate director (education) of the Emergency Digital Health Innovation program at Brown; and creator and host of the podcast “Doctors and Litigation: The L Word.”