Don’t Let Docs Testify Afraid of Their Own Shadow
Demonstrations of Exemplar Testimony Calms the Nerves and Boosts Performance
HUMAN TRIALS: The Litigation Psychology Blog
Litigation and Clinical Psychologist, Adam Rosen, J.D., Ph.D., shares insights on jury psychology and winning in court from his witness consulting and mock trials in more than 400 cases over 25 years.
Testifying as a defendant doctor can be a harrowing experience under even the best of circumstances. But ascending to the witness chair without having actually seen capable responses to difficult and provocative questions is a recipe for unecessary angst and under performance. Particularly when facing a worthy adversary armed with many rhetorical ploys and emotional appeals, it is essential that a defendant witness have actually seen how to manage these challenges to ensure that a fair and accurate depiction of their care is put forward – and endures.
“See One, Do One…” If it’s Good Enough for Surgery, it’s Good Enough for Testimony
Traditional steps in preparing defendant physicians for deposition or trial testimony include reviewing the medical record and discussing lines of questioning that may appear during an upcoming deposition or trial. In more recent years, the advent of video technology has added the somewhat helpful practice of conducting a mock exam of the doctor, which may then be reviewed and critiqued, offering ideas for improvement.
But a doctor watching their own fledgling and faltering testimonial skills is truly of limited utility, particularly when compared to watching an exemplar of excellent testimony, which can be reviewed, emulated and internalized.
In fact, the practice of observing a capable practitioner before proceeding on one’s own is well established in the physician witness’ prior medical training. The famous “See One, Do One, Teach One” rule has a long and revered history in medical education (https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4785880). This adage, and the practice it refers to, recognizes the unequalled role that observation of capable performance plays in learning a complex task before presuming to do it oneself. The enduring legacy of this idea – and this practice – is testament to the unparalleled efficacy of observational learning, When one compares the readiness of a doctor who has seen exemplar testimony to one who has not been prepared this way, the differences in skill and efficacy are striking – and often highly consequential.
How Bad Can It Be if They Just Tell the Truth?
Anyone taking an oath to tell the truth experiences an appropriately amplified focus on the simple facts as they know them, which is only right. But where that focus eclipses recognition of the stealthful tactics that will be used against them, their answers can end up serving the intentions of a guileful questioner instead of the truth. Experienced trial counsel know about the explicit and implicit messages woven into a skilled cross-examination questions, as well as the effect of naive or unqualified agreement with these ideas. And not having seen these tactics in a wide array of circumstances, the unskilled defendant doctor is typically unaware of these tactics, cannot recognize them in real time and falls for the traps all too readily.
As an example, observe the following questions, the implied criticisms and how the poorly prepared unskilled witness, though answering truthfully, fails recognize and resist the tacit criticisms and consequently leaving those criticisms untouched and intact. It is just these types of acquiescent responses, endorsing the plaintiff’s theme of negligence, that can end up in large print on front of the jury.
Q: Doctor, isn’t it true that with your admitting privileges you COULD have put Mr. Thompson in the hospital overnight instead of sending him home?
A: Yes.
Q: But you didn’t do that, did you? You sent him home, where he died, correct?
A: That’s correct.
Q: And if you had not sent him home, he would have in fact been in the hospital at 5:42 am, which is when he had his cardiac arrest, correct?
A: He would have been in the hospital, yes.
The doctor’s apprehension and his narrowed focus on just what is “the truth,” causes him to not recognize the errant messaging he is being led to endorse. The doctors answers here represent honest replies to the overt questions, but they leave powerful implicit criticism (e.g. “if you could have admitted the patient to the hospital then you should have.”) entirely unaddressed and unchallenged
Pre-testimonial meetings where this line of prospective questioning is discussed are of course useful. And putting the doctor himself through some of these questions can also generate some of the caveats and clarifications the doctor could appropriately assert when questioned. But given how wide the assortment of these attacks can be and the importance of handling each one of them with sufficient precision and force, a more comprehensive thorough and true to life demonstration of the content, pace and energy of such questions – managed by an aware and capable responder – has no equal among the more traditional options.
Here is what the above testimony might look like when performed by an aware and able exemplar witness. These more effective responses by the mock witness should be recorded for subsequent review by the doctor, subject, as always, to the doctor’s revision of medical concepts as needed. :
Q: Doctor, isn’t it true that with your admitting privileges you COULD have put Mr. Thompson in the hospital overnight instead of sending him home?
A: I can admit, IF it is needed.
Q: But you didn’t do that, did you? You sent him home, where he died, correct?
A: Yes, after two EKG’s and an x-ray came back negative, admission was not deemed appropriate.
Q: And if you had not sent him home, he would have in fact been in the hospital at 5:42 am, which is when he had his cardiac arrest, correct?
A: IF I had admitted him, yes. But that was not appropriate given the workup.
Each one of the above responses manifest a fairly similar testimonial principle, that of answering the literal question, but adding appropriate qualifiers that diffuse the implicit criticism hidden in the question. We can tell doctors they can and should do this and we can discuss a half dozen examples of it and see how they do in a practice examination. But the instances in which this type of skill is necessary are so much more abundant and varied than these few examples that only a more extensive and thorough collection of questions and answers – demonstrated by a capable witness surrogate (and recorded for review) can afford the doctor sufficient ability to view, study and review this essential and highly consequential skill in the many areas it will arise during actual testimony.
But Who Can Demonstrate?
Any experienced trial team has a lead or second chair partner, even an experienced associate, who has seen enough testimony to know the basic cadence and tactics of a focused and rigorous examination. These experienced litigators – or a witness consultant – can readily draft a ten or so page Q and A document based upon the medical record and discussions with the doctor about the clinical situation, diagnoses, care decisions and procedures. Although this role play may represent a new and different stance for counsel, the yield for the client and their defense is well worth it. And of course where counsel already has umpteen tasks to prepare for during discovery or an impending trial, this exercise can be effectively farmed out to a colleague or a skilled witness preparation expert. In my experience, my performance as the witenss in these exemplar demonstration sessions often yields not only immeasurable gains for the testifying physician, but also often new vistas on trial themes and arguments.
But Doesn’t Only the Doctor Know the Medicine?
The defendant doctor is of course always the last word on the medicine and her or his knowledge and reasoning must be plumbed and deferred to in determining medically acccurate and truthful responses. But after this review of the medical care and decisionmaking, counsel or consultant can draft a set of representative questions, inserting the doctor’s substantive replies, but with a brevity and punch that an unskilled witness would not achieve on their own. This document serves as the basis for the essential mock examination – but with counsel or consultant in the role of witness – a performance that has no match in the prior discussions or practice sessions. This mock exam is ideally recorded so the doctor can master the skills depicted not just during that one hour, but upon subsequent review and study of the tape.
Consider just some of the most simple form responses, which demonstrate witness control during their testimony and which briefly but importantly resist distortations and over-generalizations by opposing counsel:
“Yes, if it was indicated.”
“Possible, but quite unlikely.”
“It depends on the clinical presentation.”
“No, because there was no sign of that at the time.”
None of these are magical or mystical words, but knowing when to employ them and with what tone, force and substantive back-up is a skill that just does not come naturally to very many people, including highly educated heathcare providers.
It’s Never Wrong to Arm The Client with the Most Powerful Tools Available
The challenges of explaining one’s medical care to a dubious and invalidating questioner when the stakes are high is a harrowing proposition, even for a doctor who did everything right. Because of these challenges and the importance of a strong performance, showing doctors how strong testimony looks and sounds and feels has no substitute. This essential training not only delivers them from their fears, it provides them the utmost in confidence and competence as they settle into the witness chair in any setting.
Adam Rosen, J.D., Ph.D. is an Attorney and Clinical Psychologist in Cambridge, Massachusetts. He provides witness preparation consultations nationwide, with a particular specialty in professional negligence cases. He is available for both in office training sessions and virtually via Skype or Zoom. Contact: arosen@juryassociates.com Direct: (617) 921-0332
Human Trials: The Courtroom Psychology Blog
Litigation and Clinical Psychologist, Adam Rosen, J.D., Ph.D., shares insights on jury psychology and winning in court from his consulting more than 400 cases over 25 years, surveying juries and mock juries, preparing witnesses, developing and sharpening winning case themes and interviewing jurors post-trial.
Doctor,Client, HERO!
The doctor’s care did not just “comply” with the standard of care – it EXCEEDED and EPITOMIZED it. This essential emphasis will deepen defense juror verdict commitment and prevent “plaintiff drift” in the jury room.
“Ladies and gentlemen of the jury, upon your review of the evidence, I think you will conclude that my client, Dr. X, complied with the standard of ordinary, prudent health care that a professional with the same training and experience would provide under similar circumstances.”
While technically accurate, less inspiring words have rarely been spoken in a court of law, and they are, unfortunately, spoken in this way all too often. Though good facts will sometimes still save the doctor, counsel here has lost an opportunity to add value and has in fact set up a hazardous situation. It has left plaintiff committed jurors as strong as ever and defense jurors under-motivated and vulnerable to “drift” to the plaintiff side.
Understatement, calm and credibility are important qualities in a Trial Attorney and they are often held as a premium part of medical malpractice defense attorney’s reputation – with clients, insurance carriers and opposing counsel. But these admirable traits must not preclude emphatic courtroom displays of conviction regarding the excellence of the defendant doctor’s choices and performance. Allowing understatement and calm to pervade the defense deprives jurors of necessary information about the definitive adequacy of the doctor’s care – and this leaves a problematic array of juror verdict commitments as the group enters deliberations.
The Verdict Commitment Continuum
Medical malpractice cases, by definition, have substantial elements of sympathy for the plaintiff. It is rather unlikely to have zero plaintiff leaning jurors in a group that has heard about birth injuries, missed heart attacks, lost loved-ones, life-care plans and the like.
For these reasons, some jurors will naturally populate the plaintiff side of the verdict commitment continuum (see Figure 1).
Figure 1: The Verdict Commitment Continuum
In a typical Med Mal case, some plaintiff jurors will be close to the crossover mid-line (0%) and some will be further out, closer to 100% plaintiff commitment. Defense jurors, however many there may be, also populate their side of the continuum in places closer or further from the crossover line. But a defense message that suggests only the mere adequacy of the doctor’s care, rather than its excellence – its certain compliance with the standard by dint of exceeding it (or epitomizing it) deprives defense leaning jurors of any reason for their verdict commitment to be particularly strong. This then creates a hazardous combination – strongly committed plaintiff jurors and weakly committed defense jurors, dangerously close to the cross-over line, as depicted in Figure 2.
Figure 2: Despite an “even” 3-3 split of plaintiff and defense jurors,
the jury is plaintiff leaning, even before deliberations.
The grouping of defense jurors close to the decision line creates an overall plaintiff leaning group, even before the jury starts their deliberations.
Lest this become too abstract of an exercise, let’s ground this in the vernacular of a medical malpractice case, including the specific thoughts and feelings jurors can tend to have. Examples of the sentiments of plaintiff jurors may be as follows:
Plaintiff Juror: “I feel TERRIBLE for what this (woman, man, child, infant, family) has gone through and I really want to do something for them. And I am going to.” (Plaintiff Verdict Commitment > 50)
Plaintiff Juror: “I’m furious about the doctor letting this happen and barely doing what he was supposed to do.” (Plaintiff Verdict Commitment > 60)
Plaintiff-side emotion is often raw and it can feel deep and authentic and also, importantly, enlivening to the plaintiff juror. This can feel for many a juror to be one of the most meaningful situations they have been in for a long time – for some, ever. It is their chance to make a “real difference,” and they can be loathe to let the experience slip away.
On the other hand, defense jurors who have received the message above, may be thinking as follows:
Defense Juror: “Sad situation, but I’m not really sure what the doctor did wrong, like his lawyer said.” (Defense Verdict Commitment < 20)
Defense Juror: “The Judge said I’m not supposed to go with emotion and the lawyer said he met the standard of care – so that seems in favor of the doctor.” (Defense Verdict Commitment < 20)
The problem of “Plaintiff Drift” with low commitment defense jurors
Take a moment to reflect on the above types of sentiments and then imagine the holders of these views encountering each other in the jury room. Which of the above groups seems more likely to resist change and which group seems like they’d be more willing to change sides?
Again, in the vernacular of a legal case, consider possible subsequent sentiments of defense leaning jurors after they have encountered their strong plaintiff counterparts in the jury room::
“Yeah, I can see that the doctor could have…” (pick any one of the following)
- a) “Sought a consult”
- b) “Done another EKG”
- c) “Admitted the patient”
- d) “Kept her in the hospital”
- e) “Initiated a cesarean”
. . so I can see how it might be okay to give them some money.”
The problem of this type of “plaintiff drift,” where only modestly committed defense jurors shift to the plaintiff side as the jury process drives for consensus (Figure 3), is both more likely and more hazardous if defense jurors begin deliberations in a place too close to the decision line (e.g. Verdict Commitment <20%).
Figure 3: Plaintiff Drift
This dynamic of “plaintiff drift” is much more likely to pertain when the defense counsel has more dispassionately asserted – and generally evidenced – the doctor’s mere compliance with the standard of care, rather than that the care either greatly “exceeded” the standard of care or that it firmly “epitomized” what was called for or reasonable with the information known at the time. This hazardous situation can be managed and changed through some highly accessible, but quite important rhetorical and stylistic adjustments.
Countering Plaintiff Drift with Justified Emphasis of Excellence in the Doctor’s Care
The common conception of winning by persuading more jurors can sometimes eclipse the more consequential impact of working to deepen the convictions of those jurors who are already on your side. This concurrent priority may often prove more effective in winning the verdict than focusing solely on winning more jurors over. We have seen above the hazard of having half of the jurors on your side, but only marginally so.
Consider now the following statement from counsel about the excellence of the doctor’s care:
Lawyer B: “Ladies and gentlemen, as you heard and saw, by both the testimony of our expert, by Dr. Smith’s own testimony as well, the choices and procedures he made when he cared for Susan Johnson on July 14th – were exactly what the standard of care required of him and they were well within the standards and expectations of him. There was absolutely nothing about his choices that should have been any different given the information and options he had available to him at that time. For these reasons, it would only be just for you to find in favor of Dr. Smith when you retire to your deliberations in this matter.”
This type of sentiment – both overtly stated and also informing elements of questioning throughout the trial – will improve the pre-deliberation balance greatly. It will strengthen the convictions and commitments of defense learning jurors and significantly balance the scales with the plaintiff jurors (See Figure 4).
Figure 4: Motivated Defense Jurors Balance the Scale
The distribution accomplished as depicted in Figure 4 is a much more promising one for the prospects of the defense. The hazard of weak defense jurors being converted has been made considerably less by virtue of the deepened convictions they adopt through the strength of defense counsel’s statements.
Having now at least balanced the playing field against strong plaintiff jurors, the defense now at least has a fighting chance. And if counsel can also engage and temper the passions of fervent plaintiff jurors, (the subject of my next posting), an even more helpful distribution of juror commitments can arise. In that scenario (Figure 5), defense jurors have been deepened in their verdict commitments and have moved away from the center line, some degree further towards 100% defense verdict commitment. Plaintiff jurors, having felt understood and validated in their feelings, but then shown another path, can now bring themselves close to the mid line and may then be brought over by deeply committed defense jurors during the deliberation process (as in Figure 5). As importantly, the now more strongly committed defense jurors are substantially less likely to convert to the other side.
Figure 5: Defense juror verdict commitment increased; plaintiff jurors
brought closer to the mid-line, where conversion by committed
defense jurors becomes possible.
When we consider where we started this discussion, with fervent plaintiff jurors and weakly committed defense jurors, risking “plaintiff drift” and a plaintiff verdict (see Figure 2 and Figure 3), it is encouraging to know the determinants of this situation and the tools available to change the balance and protect our client, the responsible and effective health care provider.
Concepts Addressed in this Entry:
Verdict Commitment Continuum
Plaintiff Drift
Emphasize that care exceeded or epitomized the standard of care, rather than merely “complied” with it.
Our next entry will discuss the effective management of negative juror emotion in plaintiff jurors to reduce plaintiff verdict commitment (based upon negative emotions) going into deliberations. Comments and suggestions are welcome.
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To reach Dr. Rosen directly, call 617.921.0332 or e-mail arosen@juryassociates.com