We're on trial.
On your case.
Your medical malpractice case.
It's time for us to put on proof that what you're saying is true.
It's time for us to step up to the plate and put on testimony.
You sued your doctor.
For medical errors.
For being careless.
For causing you harm.
Now it's as if the jury and the judge say "Ok, you made these claims against your doctor, now prove it!"
Well, actually we don't have to PROVE much.
Instead, we only have to show that we are slightly more likely right than wrong.
That's it.
We don't have to show the jury that we are 100% certain that what we're claiming is true.
The jury doesn't have to sit in the jury room for days trying to determine if we are absolutely right.
Instead, we only have to show that we are slightly more likely right than wrong.
To use a football analogy, we don't have to get the entire football into the end zone to justify a verdict in our favor, only a little more than half will do.
Ok, so what does this have to do with our medical experts and how many times they've testified before?
Part of the testimony that we use to show that we are entitled to a verdict in our favor is using medical experts.
In fact, in New York we are required to have a medical expert testify and explain to the jury what was done wrong, what should have been done and what injuries you have now because of your doctors' carelessness.
"Judge, I call Dr. Jones to the witness stand," I say.
I want to quickly establish this doctors' credibility.
I want to establish his credentials and believability.
I want the jury to know who he is and why they should listen to him.
I want the jury to know he's been called up to give his expertise to other lawyers.
Not just for injured patients but also for doctors and hospitals who have been sued.
I want the jury to know he's been in court before, helping juries understand the medicine involved in his specialty.
This lends more credibility to what our expert has to say.
I want the jury to know how often he's testified.
Has it been ten times?
Has he been in court every year over the course of his 30 year career?
Does he do this simply to add money to his income as physician?
Or is he really doing this because he's a well-regarded expert who is called up to give his opinions across the country?
I also have another reason for getting my expert to disclose how many times he's testified in the past...
I want to get this information in front of the jury first, before my opponent brings this up during cross examination.
Yes, that's right.
I need to get it out first.
If I don't, it will come back to bite me and my expert on the butt.
Let me show you how.
If I ignore this topic and simply let the jury think this is the first time my expert has testified in court, despite having testified twenty times in the past, my adversary will know this. He'll have done his homework and done research on my expert. He'll know exactly how many times he's testified before. He'll have gotten those transcripts in other cases where he's testified. He'll have combed through each of those transcripts to find contradictory information to use against him during cross examination.
My opponent will have done a background check on my expert.
If I don't ask my expert how many times he's testified in the past, my opponent will make it sound as if I have deceived the jury.
Here's what a sample cross examination by the defense attorney might look like...
"Dr. Jones, this isn't the first time you're in court giving testimony as an expert, right?"
"You've done this before, correct?"
"In fact, you testify about 3-4 times per year? Isn't that right?"
"You've been doing that for the past 30 years, true?"
"That means over the course of your medical career, you've testified approximately 90-120 times, right?"
"In the majority of those cases you testify on behalf of injured patients, yes?"
"In only a few of those cases have you testified on behalf of a doctor who has been sued?"
"You charge more money when testifying for an injured patient, don't you?"
"In fact, you charge five to ten times more when testifying for an injured patient, correct?"
"Testifying for an injured patient is more lucrative for you than when testifying for a doctor, right?"
"This testifying thing isn't just a one time thing for you, right?"
"You rely on the income you obtain from medical-legal reviews in order to supplement your income as a physician, right?"
"To be in court today, you're charging Oginski and his client $10,000, right?"
"You know that if you were testifying for the defense in this case, the most you'd earn for the day would be $3,500, correct?"
"How many times have you testified this year?"
"It's only been for injured patients this year, right?"
"That means you've earned $40,000 just for being in court for four days, correct?"
"That doesn't include the time you spent reviewing the records and consulting with the attorneys who hired you, right?"
"When you review medical records and consult with attorneys you charge an hourly fee, true?"
"Isn't it also true that the hourly rate you charge is significantly higher when reviewing and consulting for an injured patient than when you review cases for the doctors who are being sued?"
"You charge $750 an hour to review records for an injured patient, right?"
"You only charge $300 an hour to review records for the defense, true?"
"How many hours did you spend this year reviewing medical-legal cases?"
"Of those, how many were for injured patients?"
"How many were for doctors or hospitals?"
"Would you agree that you spend more than 50% of your time being involved in medical-legal cases?"
"The other half of your time is seeing and treating patients?"
"Over the past ten years, you'd agree that the time spent treating patients has decreased, while your time reviewing medical malpractice cases has dramatically increased?"
You get the point.
The defense will demonize the doctor if I fail to bring out the fact that he has testified before. He will make it sound like it's a horrible thing if he's testified many times over his career. That's why I want to get that information out first...to soften the impact that will have.
