Persuasive Litigator

Turn in a Powerful Deposition, Doctor Defendant

By Dr. Ken Broda-Bahm: 

The Hippocratic oath also applies to doctors caught in the litigation process. In deposition, the rule is "first, do no harm" to your case. No one wins their own case in deposition. But a medical defendant might end up losing it by falling prey to some common mistakes. Depositions are taken in order to shape an adversary's case, and to be used one day by a potential fact finder. In our experience, jurors have a natural inclination to support the doctor. There is a good psychological reason for that: It is more comfortable to believe that those we entrust with our health and our lives know what they're doing. When plaintiffs are able to overcome this strong motivation to believe in the doctor, it is often because the doctor conveyed something in deposition or trial that unwittingly served to help the plaintiff. 

For example, feeling the emotional insult of a malpractice case, the physician may come across as defensive, arrogant, or uncaring. Taking too much care to avoid error, the doctor might seem reluctant to say anything and, as a result, appear unhelpful and uncommunicative. Ultimately, jurors are looking to see someone they would trust as their own doctor. If they instead see someone who is uncertain, irritated, or frazzled - a fish out of water - they come to distrust the doctor's level of competence and care. That loss of credibility helps make a plaintiff's case by allowing jurors to set aside their default trust for doctors in order to say that in this case, or against this doctor, the patient actually has a valid claim. In this post, I'll provide a brief overview of ten areas where doctor defendants can adhere to a "do no harm" strategy during depositions. 

Test the Credibility of Your Turncoat Witness

By Dr. Ken Broda-Bahm: 

Not all witnesses are saints. While this is especially well-known in the realm of criminal prosecution, it applies in civil trials as well. A witness may carry some unsavory background, or the context may simply be such that their testimony - truthful or not - feels like betrayal. The same factors that apply to the stereotypical "jailhouse snitch" can also apply in a variety of situations: a whistleblower, qui tam relator, or expert witness testifying against a member of the same profession. A doctor criticizing another doctor's work, for example, may be viewed as breaching the basic human tenet of loyalty, and for that reason, the witness may be distrusted. 

One current example of a perceived "Judas Witness" can be found in Andrew Young, the government's star in the ongoing trial of John Edwards in North Carolina. The close confidant and all-around personal assistant for the Senator and presidential candidate was, at one time, so loyal to Edwards that he was willing to do not just the handyman work and to buy Edwards' Christmas presents for his children, but to hide the candidate's affair with a documentary filmmaker during the campaign. So great was Young's loyalty that he even agreed to claim to be the father of John Edwards' love child in a failed attempt to quell media speculation. Now this same self-sacrificing lieutenant is key to the Justice Department's claim that Edwards violated campaign finance laws by using donor funds to keep the mistress out of the spotlight. While some of the criticism of Young as a witness has focused on his mumbling inconsistencies and his admitted self-interest (he apparently diverted some of the funds to help finance his dream home), part of the response we may see from the jury could also stem from the factor of disloyalty. Applying a recent analysis of loyalty in a legal context (Rich, 2010), this post takes a look at ways to bolster the credibility of the "turncoat" witness. 

But Wait, There's More: Build Your Case Over Time, Instead of All at Once

By Dr. Ken Broda-Bahm:

If that commercial for the knife set just laid it all out at the start, it would sound like this:  "Okay, here is the deal, you get the knives, the storage block, an extra set of steak knives, free sharpening for life, and free shipping if you call in the next hour."  But that isn't very exciting.  Instead, over the course of a relatively long commercial message, the knife seller will trot out each of these perks in sequence, so just as you are wondering if the knife set itself is worth it, you hear "There's More!" and you're given yet another benefit. 

As cheesy as it sounds, the technique works.  A sequenced delivery of arguments is better than a more straightforward listing of arguments, because it helps the target customers get past any doubts that they may be having over the sale.  New research shows that the same principle applies beyond the world of advertising, and works in the world of legal evidence as well.  This post will take a look at the study and draw out a couple of important implications that apply to the structure and content of your opening statement and trial plan.

Diagnose Your Difficult Witness

By Dr. Ken Broda-Bahm -

 
In the pivotal scene of “My Cousin Vinnie," a movie beloved by those who follow legal persuasion, the defense attorney, played by Joe Pesci, asks the judge permission to treat his now estranged girlfriend as a hostile witness.  This is a request that the judge, with a knowing look, quickly grants.   The scene provides an important reminder that even when a witness might formally be on your side, there could be one or more dynamics at work making your own witness "hostile" to your interests. 

I was recently asked by a legal team faced with the task of defending the depositions of a large number of witnesses how to handle difficult witnesses who could not, or would not, answer questions with the sensitivity or strategic sense that a situation demands.  Such a witness may be prone to emphasize dangerous aspects of testimony even after being clearly shown by counsel why it is dangerous.  As I've written before, woodshedding the witness with strong "say this..." instructions is not the answer, for reasons both practical and ethical.  Instead, the first step in preparing the marginal or reluctant witness is diagnosis:  It matters why the witness is not getting the message.  There are a few different possibilities:

Guess You Had to be There (Prefer Present Witnesses Over Absent Ones)

By Dr. Ken Broda-Bahm -
The recent trial involved two New York City police officers accused of raping a fashion executive, after helping her out of a taxi at the end of a night of drinking.  Without physical evidence (the department's search of the apartment yielded nothing, and the accuser herself had showered), the case depended on the credibility of testimony.  A key moment came when earlier grand jury statements were entered into the record, as John Eligon of The New York Times describes the scene: 

To spectators in the Manhattan courtroom, it was a mundane moment:  a court stenographer reading in a monotone voice the testimony of a woman who said she was raped by a police officer.

Later, in a verdict prompting local outrage, the jury acquitted the two officers, despite security cameras showing that the officers had visited the woman's apartment three more times during the night, and despite one of the officer's admission on tape that he had sexual contact with the woman - and remember, she was so intoxicated she could not get out of a cab on her own.  So, why the acquittal?  According to one of the jurors, it came down to the delivery mode of this critical testimony.