Nasty lawyer tricks

This week I attended my biannual Risk Management Seminar, "risk management" euphemistically referring to malpractice lawsuits and how to avoid them, if possible. Most of these things tend to be dreary affairs, with an insurance representative standing before us and telling us such helpful things as "If you didn't document it, it didn't happen", and "Work smarter, not harder", followed by some sanctimonious defense lawyer assuring us that if it wasn't for HIS hard work we'd all end up in jail.

This seminar was actually quite interesting, for a change; I should be able to milk it for two or three posts without any trouble.

In a civil trial, the opening statements by both the plaintiff's and defense attorneys are made, followed by witnesses called by the plaintiff's attorney. After each witness, the opposing attorney will cross-examine the witness and try to rebut any ugly assertions the witness has made. In the past, more often than not the plaintiff's lawyer will call the accused doctor as his very first witness. It makes sense: pull the doctor up on the stand before he's had a chance to acclimate to a court setting; try to make him look like an idiot, and, failing that, make him lose his cool by badgering him mercilessly, setting him up to appear to be such a jerk that the jury will rule against him even if he were completely innocent.

It turns out that this approach is a thing of the past. Doctor depositions are now videotaped. In the pre-trial preparation, the attorney will put together a Power Point presentation, splicing together any unfortunate statement the doctor may have made and then running very selected portions of the videotape in the plaintiff's attorney's opening statement. That makes sense, too: the lawyer can still badger and harass the doctor during the deposition AND then choose only the worst clips to play for the jury AND it cannot be immediately rebutted in cross-examination because it's just part of the opening statement.

"Docs, we might not be able to get you up on the witness stand to defend yourself for at least three or four days. By then its an uphill battle, no matter how innocent you are."

Those doctors in the audience with Blackberries were pulling up the latest stock-market quotes to see if their portfolios were adequate to allow them to retire. I, however, was glad to see that the Public Interest was in such good hands and was being so well protected.