By Dr. Ken Broda-Bahm:
At a recent witness preparation meeting, the doctor-defendant sat struggling to recall the details of an informed consent discussion she had with the plaintiff. "I think I told him..." she began, before finishing the statement with, "...Do you know how many patients I see? I really cannot remember." The medical record reflected that there was indeed a discussion on risks, but the notes were not specific enough to answer the key question we expected from plaintiff's counsel: Did the discussion cover the specific complication that actually occurred? Sensing that the doctor was about to resign herself to an, "I don't know," I asked, "Well, in cases like this, what do you usually talk about with patients?" And, without much effort, she reenacted that discussion and included the key warning. "Okay then," I said, "Why don't you say that?" She explained that, because it wasn't in the record and because she didn't have a specific recollection of this discussion, it did not seem like that would be credible. "It's probably more credible," I responded, "because it is what you say in every case, and not just in this case."
The solution when records and specific recollection fail is to rely on pattern and practice -- not the pattern and practice evidence that can be admissible as evidence of bad faith or pretext in, for example, an employment suit, but rather the pattern and practice that serves as credible evidence of our habits. Relying on these standard practices isn't just good advice for doctors, but can also serve as a reliable basis of testimony in other contexts: in fleshing out a product development story, or in describing the norms of your communication about a contract, for example. In each case, the witness who does not recall a specific interaction and cannot point to specific documentation about that interaction is not out of ammunition. Instead, the witness can answer by saying, "My standard practice in situations like this is to..." And rather than being a consolation prize, next-best sort of answer, that use of what is typical can turn out to be highly credible in practice. In this post, I'll share my thoughts on why that is the case, and how pattern and practice can be put to the best use.