It seems easy, right?
You're watching Law & Order on TV and forty minutes into the show, the case miraculously is in the middle of trial!
Amazing speed at which that happens.
Same thing in the movies.
You see dramatic courtroom scenes involving cross examination but you never see the painstaking preparation that leads up to that moment.
Want to know why you never see that stuff on TV or in the movies?
Because it's boring.
It's time consuming.
It's not sexy.
Every experienced trial attorney will tell you that preparation is the key to a successful case.
Did you know that many attorneys don't talk to their clients about trial preparation?
Want to know why?
The first is that the client doesn't care what their attorney has to do to prepare for their trial.
It doesn't really involve them, so they're not concerned.
The second is that clients typically don't want to hear about this until they know for sure that they're going to trial.
Let's take a look at a medical malpractice case here in New York.
I want you to understand what happens when your case is approaching trial.
So, lets get right to it.
Here's the scenario...
Your doctor was careless.
His carelessness caused you injury.
Your injury is permanent.
You're out of work for months.
Your ability to earn an income is severely limited.
Your ability to do your daily activites is limited.
You can't do many activities you once did.
You decide to bring a lawsuit against your doctor.
For medical malpractice.
You find the best attorney for you and your case.
He hires a medical expert to confirm that you have a valid case.
Because in New York we are required to get confirmation from a qualified medical expert that (1) Your doctor was careless, (2) His carelessness was a cause of your injury and (3) That your injury is significant and/or permanent.
Only then are we permitted to file a lawsuit on your behalf.
Your medical expert has reviewed all your records and confirms you have a valid case.
Your attorney starts your lawsuit.
In response to your lawsuit, your doctor says "Why are you suing me? I did nothing wrong!"
He then argues that if he did something wrong, so did you.
Then he'll claim that if he did something wrong, it didn't cause your injury.
Finally, he'll argue that if he did something wrong to cause you injury, your injury really is not as bad as you claim.
In essence, he's disputing everything in your lawsuit.
He's disputing liability.
He's disputing causation.
He's also disputing damages.
Your case then enters the 'discovery' phase.
Each side must now provide records to the other side.
Each side must now give testimony about their version of the events.
This process is really a question and answer session that takes place in an attorney's office.
There's no judge present.
There's no jury present.
However, there is a court reporter to record all of the questions you are asked and all of your answers.
The answers you give during your pretrial deposition carries the same exact weight as if you are testifying at trial.
After all documents are exchanged and after all the people involved are questioned under oath, your attorney will tell the court that your case is ready for trial.
Depending on which county you are in, it will be many months before your case actually get called for jury selection.
Lawyers say that your case is now sitting on the trial calendar awaiting a trial date.
In the months leading up to trial an attorney will begin to prepare your case for trial.
Preparation is the most important part of your trial.
Let's start looking into what an experienced lawyer does to prepare your case for trial.
Since it may have been a while since your lawyer last reviewed your file in depth, the very first thing an attorney will likely do is read through your file from start to finish.
Every medical record.
Every piece of investigation.
This will re-familiarize him with all the details of your case.
The best attorneys have a system for then identifying witnesses they will need for trial.
Let's break it down into categories...
OPENING ARGUMENTS & CLOSING ARGUMENTS
DIGGING UP DIRT
EXPERT WITNESS REPLIES
MEDICAL RESEARCH & TEXTBOOKS
How many witnesses will we need to prove you are more likely right than wrong?
How many will the defense be brining in?
Which of our experts need to come to court to testify?
Once I identify which experts I need to testify, then I need to determine what each will be talking about.
One may discuss how your doctor violated the basic standards of medical care.
Another may discuss how your doctor's wrongdoing was a cause of your injury.
Other doctors may testify about how bad your injuries are.
I need to prepare legal briefs for the Judge.
A legal brief is a collection of legal cases that support our position.
An attorney who has some thorny issues that he knows will come up during trial would be well advised to prepare a legal brief for the judge to support whatever position he needs to take.
For example, let's say my client was a convicted felon.
He did something really stupid twenty years ago.
He paid his debt to society for 10 years in a federal prison.
But this case involves improper medical care he received two years ago leading to permanent injuries.
While evidence of his conviction can be disclosed to the jury, details of WHY he was arrested, convicted or plead guilty may not be so clear cut. We may not want the jury to learn some details as they could severely impact his credibility.
In that instance, if we have case law from other prior cases that support our request, I can now hand it to the judge when the defense lawyer tries to bring out this information during cross examination.
I also need to prepare "Requests to Charge."
This is a document that lets the judge know what specific sections of law I would like him to discuss with the jury at the end of the trial.
Each attorney has specific laws that they want the judge to discuss with the jury.
The judge will then have to decide which of the competing sections he will use to talk about the law in this specific case.
An attorney would be well advised to modify standard sections of law in order to adapt it to your case.
In case you didn't know, words matter.
Words that have specific meaning according to the law.
Cases are won and lost based on the legal instructions a judge gives to the jury.
In addition, cases that are appealed by the losing side often focus on the specific legal instructions the judge gives to the jury at the end of the trial.
There are two types.
Direct examination and cross examination.
We all know what cross examination is.
It's questioning an opposing witness.
But it doesn't have to be.
Cross examination is a search for the truth.
At least that's what we see portrayed on TV and in the movies.
In real life, some of the best trial lawyers conduct cross examination is a very respectful and polite way.
Then again, there are times when cross examination calls for righteous indignation, pounding the table and raising your voice.
Direct examination is when I question a friendly witness.
A witness whom I call to testify.
One who can be expected to give favorable testimony in your case.
Direct examination involves asking open-ended questions.
Who, What, Where, When, How, Why.
"Tell us more..."
"What happened next..."
This allows a friendly witness to explain to the jury, in their own words, what happened.
Outlines of what I need to ask our witnesses must be prepared.
I must practice what I will be asking.
I must have an agenda for each witness.
Each witness must be able to prove a series of facts.
Cross examination is the highlight of every trial.
If done correctly, you can feel the tension in the courtroom.
You can feel the squirming.
You can feel the witness is uncomfortable.
Cross examination also has an agenda.
I must map that out.
I must create outlines for each witness I will cross examine.
I must be able to access evidence and prior testimony quickly and precisely when questioning a witness.
Will I be kind and gentle?
Will I be aggressive?
ALL OF MY QUESTIONS DURING CROSS EXAMINATION MUST BE LEADING QUESTIONS!
I will never ask 'open-ended' questions during cross-examination.
"Dr. Jones, isn't it true you graduated from NYU Medical School?"
"Isn't it true you are licensed to practice in NY?"
"Isn't it true you are board certified?"
"Doctor, isn't it true that your license to practice medicine was revoked five years ago?"
"Doctor, in all the articles you've published, have you published anything dealing with the key issue in this case?"
All of these are leading questions.
They ONLY call for yes or no.
You see, during cross examination, I want to tell the jury the story.
I only want the doctor or witness to agree or disagree with me.
I do not want him explaining anything to the jury.
He'll already have done enough of that by the time I get up to cross examine him.
The best trial lawyers have an agenda for each witness.
Ask the questions you need, then sit down.
Make your points.
The jury will see you've made your point.
No need to gloat.
No need to do a fist pump.
No need to do a touchdown dance.
OPENING & CLOSING ARGUMENTS
Believe it or not, the smartest trial lawyers prepare their closing arguments shortly after your case is started...at the very beginning of your case.
Yes, it will evolve over time, but the broad outline of closing and opening arguments for trial are done even during your initial meeting with your attorney.
The headline of the case will come into focus during your lawsuit.
The 'theme' of your case will become clear.
"Doctor fails to recognize the obvious."
"Nurse fails to communicate with doctor leading to disaster."
"A simple decimal point caused this patient to lose his kidney."
This theme will be repeated throughout your trial.
It will be repeated throughout testimony.
It will be repeated during jury selection and opening arguments.
It will be repeated during closing arguments.
We want the jury to easily remember our theme.
We want the jury to feel the urge to right a wrong.
We want them to understand that our community does not reward this type of behavior and action.
Our opening argument is a discussion with the jury about what we intend the proof will show.
Our closing argument is to show the jury that we lived up to our promises to show them we are more likely right than wrong that what we're claiming is true.
An attorney MUST PRACTICE over and over their opening and closing arguments.
Over and over.
Always refining our words.
Always focusing on our proof.
Always focusing on our theme.
It's like the old joke...
"How do you get to Carnegie Hall? Practice!"
Every witness I intend on calling to testify, except the doctor whom you have sued, must be prepared by me.
I need to teach the witness what questions I will be asking.
The witness must be able to answer my open-ended questions.
I need to teach the witness what to wear.
How to present himself while on the witness stand.
How to address the judge.
How to address the defense lawyer.
How to act toward the defense lawyer.
Here's something eye opening for you.
I DO NOT TELL THE WITNESS WHAT TO SAY.
Some people think that's what attorneys do.
That's not what we do.
By the way, the defense prepares their witnesses the exact same way as we do.
At trial, some lawyers make a witness feel self-conscious and almost guilty to admit that they spoke with their attorney before getting on the witness stand.
Actually, it would be malpractice for an attorney NOT to meet with and prepare his witness before he took the stand.
The jury is made to understand that it is expected and required for a witness to speak to their attorney before testifying.
That means meeting with each and every witness I will be calling to testify.
If a witness has testified during a pretrial question and answer session, they must review a transcript of their testimony to refresh their memory of what they said.
This is a big one.
What evidence will I need to prove your case?
Medical records? Check.
Letters to and from your doctor? Check.
Paid medical bills? Check.
Proof of lost earnings? Check.
Proof of time out of work? Check.
Photos of your injury? Check.
A day in the life video? Check.
Well where are these things coming from?
Can I just walk into court with our copies and submit them to the court as evidence?
Actually, no. I can't.
Many of these things I will need to subpoena into court.
Subpeona's must be prepared.
A fee must be attached to a subpoena that compels someone to appear in court.
Those subpoenas must be delivered to the people we want to either appear in court or deliver original records to court.
In many cases I must get the court to approve a subpoena if it involves a State or municipal agency or hospital.
Do I have a foundation for each piece of evidence I need to use?
That means that I can establish where each piece of evidence came from.
That means I can identify that each piece of evidence is either an original document or a certified copy of the original.
That means that I need a witness to vouch for the chain of custody of each piece of evidence or that I have a certified letter confirming the authenticity of each piece of evidence.
I also need to make copies of all my evidence to show to my opponent as well as providing a copy of certain documents for the judge.
It's show and tell time!
Jurors love show and tell.
At least I think they do.
We call these things 'exhibits'.
Enlargements of key medical records are needed.
Blown up to poster size.
30 inches by 40 inches.
Big poster boards on foam core boards.
Held up by easels.
Anatomical models are used often.
CAT scans, MRI scans, X-rays all need to be authenticated and able to be shown to a jury either on a 'shadow box' (also known as a light box or on a laptop projected onto a screen in the courtroom.
For every scan, x-ray or diagnostic image I use, I must make sure that each one has identifying features such as my client's name, date of birth and identifying number.
I have to authenticate those images and then must notify my adversary that I intend on introducing them at trial. I have to give my opponent copies of anything I intend on using at trial.
If I want to use a computer animation or a video, I have to give a copy to my adversary and let them know I'll be using it at trial.
This gives them an opportunity to review it and object to its use if necessary.
DIGGING UP DIRT
This part is fun but very tedious.
For every opposing witness and medical expert who testifies, we MUST do our research and dig up whatever dirt we can find.
That includes doing a background search.
A criminal background search.
A search on any medical literature they've published.
A search for any previous testimony they've given in any lawsuit.
If there is previous testimony, I need to obtain copies of trial transcripts from attorneys who handled those cases and then read each and every one.
If my research reveals something devastating, I need to build that into my cross examination of that witness.
EXPERT WITNESS REPLIES
In New York, attorneys are required to tell our opposing attorneys that we have retained various experts to testify.
We have to explain what our experts will be talking about.
We have to tell, in detail, what our experts will be discussing and the basis for their opinions and conclusions.
We are also obligated to tell the opposing lawyers the credentials of each of our experts.
We DO NOT disclose our medical experts' names.
If it's an economic expert, his name must be disclosed.
If it's a medical expert, no names.
That's interesting, isn't it?
In New York, our medical experts DO NOT appear for pretrial questioning.
You should know that once we have provided our adversary with this expert witness information, they plug in their credentials to a computer program and identify who the expert is with 100% certainty. We do the same thing.
Once we identify WHO our opponent is bringing in to testify against us, it's now time to dig up dirt on that expert.
How many times has he testified before?
How many transcripts are out there?
Does he testify only for the defense?
Does he review cases for both injured patients and doctors?
Has he never testified before?
What kind of witness does he make?
Time to speak to each attorney who cross examined him at trial.
What can he tell me about this particular witness?
This is very challenging.
I have to schedule my experts to appear in court.
I can only do that when I have a definite trial date.
I can only do that when I know how many witnesses I will be putting on at trial.
I need to know what days my experts are and are not available to come into court.
Are they travelling from out of state?
Where will they be staying?
Do they have transportation to the court house?
Will I be able to meet with them the evening before they testify?
I need to make sure subpoenas go out in time for all medical records I need to be in court on time.
I need to ask my opponent how many witnesses he plans on calling.
I need to rearrange my personal schedule and any vacation time so it does not conflict with the trial.
I need to know what day the judge does not have trial.
Most judges typically have one day during the week where they are not on trial.
On those days they are busy attending to other cases.
Some judges only set aside a morning to handle motions and conferences.
I won't know the exact scheduling till much later.
MEDICAL RESEARCH & TEXTBOOKS
I should have already done all of my medical research at the beginning of your case.
As we get close to trial, I need to identify if there are any publications, including textbooks that I can use to cross examine the defense's medical experts.
If so, I need to get them into court.
I need to get copies of medical journal articles.
I need to make enlargements of certain rules & regulations and guidelines for doctors in this field of medicine.
These are just SOME of the things an attorney does to prepare your medical malpractice case for trial.
Don't forget, an attorney needs to handle his other cases at the same time and that often requires juggling many things at once.
To learn why I have to yell "OBJECTION JUDGE! That's a compound question"in a medical malpractice case, I invite you to watch the quick video below...