Category Archives: Jury Duty

How to Be an Effective Trial Witness

I’ve decided that despite only serving as a juror for 7 days, I am sufficiently qualified to advise people on how to be a successful witness in a trial. My particular case was a local medical malpractice lawsuit with a combination of paid and unpaid witnesses, but I’m confident that my tips would translate to criminal cases, as well.

It turns out that the expression, “You get what you pay for,” even applies to experts who testify in a trial. There were three doctors hired to review our case: one for the defense, and two for the plaintiff. For some reason it was always the opposing attorney who would ask a question considered quite rude outside the courtroom, “So, how much did you get paid for this gig?”

Ok, well maybe they didn’t ask it quite like that, but the legal teams were indeed curious about compensation and time invested. I was shocked when I heard the first pay-inquiry, directed at a doctor in California who testified via video. He didn’t seem fazed by the question, and calmly announced his rate of $350 per hour. You could see the jury members doing math in their head when the next answer came out: he’d spent over 30 hours on the case. It was beginning to look like the expert witness deal was a profitable venture, if you don’t mind being harangued by lawyers.

In the case of this doctor- let’s call him “Dr. California”- was it worth the money? I would have to give him a grade of “C” on his performance: he gave a decent presentation for the plaintiff but did concede on the defense’s main argument during cross-examination. His presentation was flat, the video was long and tedious, and something didn’t quite translate in the same way it might have if he had made the trip to Augusta. The plaintiffs were spending the money anyway, why not sport out some cash for travel costs? In this particular instance, I’m not sure that the video testimony was a solid investment.

Our next medical expert, however, was worth every penny, despite the $500 per hour fee. This man was amazing. Even if you hadn’t peeked at his impressive CV, you immediately got a sense of his confident authority and intimidating intelligence. He knew the details of the case off the top of his head, and when the opposing attorney tried to shake his testimony, he chewed her up and spit out the scraps. He simply could not be overcome in his articulate assessment and Mensa-level replies. Despite his obvious intellect, he explained procedures such as “nasotracheal suction” to the jury in a way that made us nod our heads in comprehension. He had flown in from Pennsylvania in order to testify live, and the resulting presentation was one of the most memorable moments in the trial. I’ll call him “Dr. Mensa”.

Unfortunately the third paid witness was as underwhelming as Dr. Mensa was overwhelming. This last doctor was local but couldn’t come in to testify until the last day, forcing the judge to allow witnesses to testify out of order. A retired anesthesiologist, he had signed 4 different affidavits criticizing whichever party the plaintiff decided to sue that week. His testimony, at $100 an hour, lacked authority, veracity and vocal variety.  I hate to always drag out the automotive analogies, but I felt like I had moved from a test-drive of a Lexus LS460 to a pre-owned Ford Fiesta.  By the time “Dr. Fiesta” spoke to us on the last day, the jury was so well-versed in the details of the case that we audibly gasped when he answered a question incorrectly.

“How many times did the patient receive a mucomist treatment?” The defense  attorney quizzed him during cross-examination. The rest of us had all committed the charts to memory and knew that there had not been any mucomist given, despite doctor’s orders. Dr. Fiesta wasn’t as well-versed. “Once or twice,” he replied, at which point we knew the testimony was heading down the toilet. “Ok”, the attorney replied, “why don’t you find it for me in the MAR”, he suggested, referring to the medical document reflecting all meds given. “What’s an MAR?” Dr. Fiesta looked puzzled. The mortification continued for another 30 minutes, until the attorney decided that he had buried himself deep enough already.

What Dr. Mensa and Dr. Fiesta did have in common was an understanding of the importance of speaking directly to the jury. After several days of witnesses (nurse, family members) who only spoke to and looked at the lawyer, it was refreshing when the first witness (Dr. Mensa) positioned himself toward us, made eye contact, and spoke to us about the medical procedures as if we were his colleagues. It was respectful and engaging. I understand that the witness stand can be intimidating, but it makes such a difference to have someone look at you when they speak. The only non-paid witness to do so was the defendant himself, who pulled us in with his directness and self-assuredness.

After observing this wide range of witnesses, I have made myself a note of the top 5 things to remember when speaking from the stand: 1-Make eye contact with the lawyer AND the jury. 2-Be sincere and confident in your replies. 3-Answer only the question. Do not expound on the topic if not asked to do. 4. Good posture and open body language helps. 5. Above all, NEVER EVER guess if you are unsure of an answer. If you don’t know, admit it. If you don’t remember, say so. If you need to, qualify an answer with “as best as I can recall”. There is nothing more awkward than a witness being challenged on an answer that they clearly pulled out of their hat.

I cannot imagine that being a witness is a good experience. If you are in court, often something bad has happened to someone. The only way to survive the testimony process with grace is to stay true to yourself, look the jurors in the eye, and hold yourself with confidence. Oh, and don’t be afraid to ask for what you are worth.

Juror #12

I’m not sure why I was so worried that the other jurors would vote differently. I mean, the case was obvious, almost an atrocity of wasted time. If the two legal teams were in a political or sports race, it would be considered a landslide victory or a slam dunk. I knew by the end of the first day how I wanted the case to end, but my fellow jurors were hard to read. We weren’t supposed to discuss the case, and they seemed very cool throughout the whole process.

I, on the other hand, got a little too invested. I was taking copious notes, as if the trial were a crash course with a difficult final exam. By the last day, I had 3 notepads full, each with its own table of contents. For all I knew, I might later need to refer to what witness #4 said on day 3 about Jet Neb treatments. At one point, I shook my head “no” at a question posed to a witness, and the plaintiff’s lawyer glared at me. I feared I would be kicked off the case.

I clearly didn’t know how to maintain the staid poker face of my peers, and could often be seen with my mouth open at some unexpected revelation. For example, my eyes popped out and my lips made a big “O” when I learned that the initial defendant in the suit was actually the nursing staff and the hospital, and not the on-call critical care specialist in charge of the patient at 2 in the morning. Over the course of 12 years, the case had morphed many times: changes included who was being sued, as well as who was doing the suing. The original plaintiff lawyer when the case began was completely different than the lawyer who ultimately stood in front of us, another revelation that left me stunned.

It was difficult not to become riveted by the case. At one table was a wife and grown son who had lost Dad unexpectedly after elective surgery, and at the other was a doctor who didn’t even know this patient died until he was served legal papers as he pruned bushes in his front yard. Throughout the trial, I often furtively peeked at these individuals. The doctor always paid close attention to the proceedings, but with a heartbreakingly sad look on his face. His ruddy complexion exacerbated the appearance of his morose expression, and when I looked at him, the phrase “puppy dog eyes” often popped in my head.

At the plaintiff’s table, the spouse of the deceased held a perpetual sadness in her face, often erupting into tears at any mention of her 67-year old husband. When they married the first time, she was 18 and he was 36. They married and divorced often, and at his death, she was considered his spouse through common law conditions, a point discussed ad nauseum in the trial. With the exception of a tearful but ineffective time on the stand, the son spent the entire trial looking glumly at his hands.

Watching all of them became a source of utter fascination for me. What must it be like to have this type or ordeal spinning through your personal vortex for more than a decade? For the family of the deceased, it was clear that they had their personal issues in addition to the loss itself. They had both seen the patient after surgery, when he seemed to be doing fine. Neither stayed the night in room 510, the epicenter of all of our drama, because they were assured that they could visit again in the morning. By 9am, the patriarch of the family had “coded”, and by the time wife and son were contacted and returned to the hospital, expressions like “coma”, “brain-dead” and “pulling the plug” were being tossed around.

It is difficult to imagine a marraige frought with enough turbulence to cause the couple to re-marry so often, but the most telling revelation about the relationship was the last thing the patient said to his wife before she left room 510 that night: “Don’t worry about me, honey, I’ll be fine.” This statement struck a chord and choked up his wife when she relayed it to us, but not for the reason you think. It was because he used a term of endearment with her. Apparently our patient was not an affectionate or demonstrative type of guy, and in the 30 years they had known each other, he had NEVER called her anything like “honey”. The tragedy hits on more than one level.

Despite the poignant sadness of the family, there was equal distress at the other table. A well-respected medical professional was being accused of the worst thing possible: not caring. The crux of the plaintiff’s case rested on the charge that our doctor, on call during the early morning hours of the crisis, received a contact from the nurse and did absolutely nothing to respond. The implication was that he just blew off the call, didn’t fulfull his obligation to the accepted standard of care, and allowed the patient to deteriorate into a state of respiratory distress. Even after listening to details of the case for 7 days, I still cannot wrap my head around someone attacking the core of someone’s character like that. With each sloppy, inefficient attempt of the plaintiff’s lawyer, I became more and more passionate in my determination to make sure that the doctor was able to walk out of the court with his head held high.

Which brings me back to why I was worried about my fellow jurors. I had no idea how they were absorbing all of this information. Perhaps they weren’t as vexed as me that the careless plaintiff lawyer never made copies of her documents for the defense counsel. Perhaps they didn’t become annoyed at her illogical cross-examinations. She focused on trying to catch witnesses making comments in contrast to their depositions from 6 years ago; she failed to ask intelligent questions designed to speak to the core of her case. “The burden of proof is with the plaintiff”, we heard from day one. We knew she would have to prove that the doctor cared more about money than patients. She wasted hours on topics that failed to prove anything except for her lack of respect for everyone’s time. At one point I even had a flash fantasy of cross-examining her on the inability of her team to find needed documents. I might even challenge her regarding writing questions in advance to prevent repeating them multiple times. But was I alone in my fantasy? Were other jurors equally critical of her proclivity to “leading the witness” or flat-out interupting them? I simply had no way to know, and there was too much at stake.

By the time deliberation day arrived, I was a nervous wreck. I knew we had to make a unanimous decision, and I wasn’t sure if I could be persuasive enough if I were alone with my point of view.  I was fully prepared to cause a hung jury or whatever happens when jurors cannot agree. I knew there was no way in my heart I could offer any money to the plaintiff. I was determined to stand strong.

At first the deliberation discussion lacked focus. People were talking about witnesses and debating about common law. I interupted the debate to say “look, all of this is irrelevant if the doctor is not at fault.” I tapped my heart. “Does anyone not know with a sure heart how they want to vote in this case? Does everyone know with full conviction how you want this thing to play out?” The room was quiet- they looked at me- and I knew. This group is as sure as I am. Now I just need to find out which direction. So I stated that we needed to “go around the table and declare a side”. The foreman started, and quickly we went around the table. For the first time since the case began, I started to breathe easy. We had a chance of this working out ok. The tally was 10-1-1. With a little debate and encouragement, our one dissenter and one undecided swayed over to our side, and the foreman was able to sign the decision paperwork.

Back in court, there was little drama for the first time in 7 days. I’m sure I will share more details about what transpired in later blogs, including all that I learned about the legal and medical worlds. In the meantime, I can re-live the moment the Judge walked over to thank us, shook each of our hands, and released us from duty. Outside in the parking lot, we were able to speak for the first time with the defense legal team, who was clearly elated at the positive outcome. Business cards were passed, promises of calls and emails were made and we all got in our cars for the last time.

While the final result may be sad for the family, I hope they can comfort each other that at least it is over, this 12-year journey. My prayer for the widow is that she meets someone new, and that it is a person who will fully appreciate her, and call her “Honey” every single day. To me, that would be the best happy ending possible.