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You've Just Finished Testifying in Your Medical Malpractice Trial in New York. An Hour Later You Realize You Said Something Incorrect. Can You Get Back on the Witness Stand and Correct What You Said?

It's your medical malpractice trial.

Here in New York.

You sued your doctor.

He was careless.

His carelessness caused you harm.

Permanent harm.

You are seeking money as compensation for all of your injuries.

The defense disagrees.

They claim they did nothing wrong.

They claim you contributed to your own injuries by not taking your doctor's advice.

They also argue that your injuries are not as bad as you claim them to be.

The defense refuses to negotiate.

You proceed to trial.

A jury will determine if you are more likely right than wrong.

If so, a jury will decide how much money you will recieve for all the harms, losses and damages you suffered.

Your trial is taking place in New York County.

In downtown Manhattan.

60 Centre Street to be exact.

On the second floor.

There's an old-world feel about entering the rotunda of this courthouse.

You sense it.

You sense the history.

You feel the thousands of people who have passed through here seeking justice.

As you enter the courtroom, you notice the leather padding on the doors.

It feels ancient.

It feels regal.

You smell the wooden benches and the formality of the courtroom.

The acoustics are less than ideal.

High ceilings.

Tile floors.

Beautiful mouldings and woodwork adorn each courtroom.

Your attorney finished picking a jury only yesterday.

You have been told to be in the courtroom at 9:15 AM.

The judge has told everyone trial will start promptly at 9:30 AM.

The Judge tells his court officer to bring in the jury.

The court officer announces the arrival of the Judge.

Everyone stands.

The Judge tells everyone to be seated.

He introduces himself to the jury.

He gives the jury preliminary instructions on what to expect and what will happen.

As soon as he is done, he turns to your attorney to begin opening arguments.

"Mr. Oginski, you may proceed with your openings."

After your attorney gives his opening arguments, the defense attorney goes next.

After openings are done, the Judge tells your attorney to call his first witness.

"Your Honor, I call Dr. Goldberg to the witness stand."

Your attorney calls the doctor you have sued as his first witness.

This is a common tactic in medical malpractice cases.

We often want to have the doctor you sued testify about what he did and why.

We want the doctor to explain to the jury what the standards of care were.

Experienced trial attorneys know how important it is to control this witness.

Even though I call the opposing doctor as my first witness, I question the doctor as if he is a hostile witness during cross examination.

That means I will use short, leading questions.

I NEVER give the doctor an opportunity to explain.

I need to be in control at all times.

If I ask the dreaded question “Dr. Goldberg, tell us why...” that will open up a can of worms that will bite me in the butt.

After I'm done, the doctor's attorney takes over.

The doctor's attorney will ask open ended questions.

"Doctor, tell us what happened..."

"Tell us more..."

"What happened next..."

"Why did you do that?"

This gives the doctor an opportunity to explain in great detail what he did and why he did it.

After the doctor has been fully questioned by both sides, the Judge tells your attorney to call his next witness.

“Your honor, I call Mrs. Jones to the witness stand.”

That's you.

It's your turn to testify.

It's your turn to shine.

It's your turn to tell the jury what happened to you.

It's your turn to explain to the jury how your injuries have affected you on a daily basis.

You are ready for this.

Your attorney has prepared you for the questions he will ask you.

Your attorney has prepared you for cross examination.

Your attorney has told you to be honest and tell the jury what happened.

No exaggerating.

You spend an hour and a half being questioned by your attorney.

There's a lot of ground to cover.

The defense attorney is not so kind.

He keeps you on the witness stand for 2 1/2 hours.

Sure you have a bathroom break.

However, by the end, you feel beaten up.

You feel exhausted.

This has taken an emotional toll on you.

You are confident you came across well.

You answered the questions to the best of your ability.

There were only a couple of instances where you didn't remember exactly what happened.

The defense lawyer wanted specifics.

You remembered most things, but occasionally couldn't remember certain details.

After you finished your testimony, the Judge decides to end the court for the day.

On your drive home you remember some of the things that the defense lawyer asked you that you didn't exactly remember while you were on the witness stand.

The more you think about it, the more you realize that some of the answers to his questions were not correct.

When you arrive home, you immediately call your attorney.

You tell him about your revelation during your drive home.

You tell him that some of the answers you gave were incorrect.

Some of the doctors you saw and the dates when you saw them were not entirely correct.

You think this is a big deal.

You believe that the defense lawyer is going to make you out to be a liar based upon your inability to remember certain dates and times that you saw various doctors for follow-up care.

Your attorney is not so concerned.

Your attorney doesn't believe this is such a big deal.

You, on the other hand, feel this is extremely important.

You ask him whether you can get back up on the witness stand the next day to explain away this inconsistency between what you said yesterday and what you remembered on the drive home.

Your attorney tells you that it's not significant.

No one can be expected to remember everything.

"All these details, all these dates and all these different people that you saw, it's understandable if you made a few mistakes."

"Besides, it doesn't go to the heart of your testimony."

"It doesn't show you are trying to be deceptive."

"It doesn't show you are trying to cover something up."

"Instead, it shows that you are human."

"On the other hand, if you had remembered all of the details of every doctor's visit and every date and every notation and every comment, the defense attorney would likely turn around and say that you either memorized all of these things or maybe had fabricated all of these things since it's impossible for any human being to remember every single detail of every single event."

Your attorney tells you that he's not going to attempt to put you back on the witness stand.

This news is not comforting to you.

In fact, you feel your attorney is making the wrong decision.

You disagree with his strategy.

Your lawyer tells you that technically you can no longer get up on the witness stand to testify again.

All your testimony has finished.

Your lawyer has asked you all the necessary questions.

If he did not feel satisfied with the answers that you gave, he would have spent more time asking you additional follow-up questions.

When the defense attorney cross-examined you, after he was done, your attorney had an opportunity to ask follow-up questions known as rebuttal.

Since your attorney had no rebuttal questions, it is assumed that there was no follow-up needed to try and correct or explain any of your answers.

That means that when the attorneys finished questioning you, your testimony was over.

If your attorney felt you needed to go back on the witness stand because of some clear and obvious mistake, he would have to give the Judge a very good reason why you needed to return to the witness stand to continue your testimony.

Simply arguing that you now remember something different compared to what you said yesterday, would likely not be sufficient to have you retake the witness stand and continue your testimony.

If your attorney had finished calling all of his witnesses and now rested his case, then the Judge would have a greater reason to deny reopening your case to allow you to get back up on the witness stand and testify.

To learn why an attorney would admit damaging information at trial, I invite you to watch the quick video below...