Defense Attorney Jim Tuffin on “Preparing a Witness for Trial…

“And was this in accord with good and accepted practice?”

“I hate this!”

My client was up on his feet, pacing around the dining area of his home. We were getting ready for the trial. I did not know him well; another lawyer had handled the pre-trial depositions. His classic professional reserve and courtly manners made this turn in the conversation surprising.

The case was not much to worry about. We knew the jury would learn that an advisory panel, consisting of a surgeon, a lawyer and a judge, found no negligence in the case.  We had older medical records to prove that the injury allegedly caused by malpractice was present for years before the procedure in question.  Nevertheless, trial was imminent and there was work to be done.

We carefully reviewed the operative report and every detail of the procedure.  It was crucial to avoid being surprised by some overlooked detail.  Witnesses can easily get flustered when put under pressure in the courtroom setting; tedious preparation fosters familiarity with the details and minimizes the risk of misspeaking.  By the time we got to the penultimate question, the doctor had enough.

I couldn’t blame him for feeling that way.  I knew that most doctors, and especially surgeons, work under tremendous time pressure.  The local courts were in a state of chaos and it was impossible to plan for a trial. You just never knew when the trial would actually happen. And this case was an insult to the intelligence. It must have been particularly galling to consider that his life was being disrupted because a colleague, in exchange for a few thousand dollars, was prepared to come down to the courthouse and spout off a bunch of trumped-up nonsense.  Now here’s this wet-behind-the-ears lawyer making sure he was prepared to tell the jury that he operated “in accord with good and accepted practice.”  I figured he was ready enough.

There can be more to it, of course. Being a doctor (or a lawyer) is not just what you do, it is who you are. You aspire to perfection, but nobody is perfect. Yet, the accusation of professional imperfection can put a crack in the foundation of self-worth. Hairline fractures can cause pain.

If there really was an error, the crack is wider. The crack can be repaired. Lessons can be learned. Much good was done for many before a mistake was made, and much more good will be done after a lesson is learned.  Displaced fractures cause pain and take time to heal; it is not prudent to pretend they don’t exist.

The night after he testified, my client was hospitalized with an acute illness. We won the trial in his absence. I never spoke to him again, but I learned that he recovered from his own surgery and returned to practice.  I assume he went on to do a lot of good for many patients.

(Jim Tuffin practices law in Arizona and New York. His website address is www.tuffinlaw.com)

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