Innov Clin Neurosci. 2025;22(7–9):42–43.

by Akemini “Kem” Isang, RN, JD

Ms. Isang is a Risk Manager at Professional Risk Management Services (PRMS).

FUNDING: No funding was provided for the preparation of this article.

DISCLOSURES: The author is an employee of PRMS. PRMS manages a professional liability insurance program for psychiatrists.

This ongoing column is dedicated to providing information to our readers on managing legal risks associated with medical practice. We invite questions from our readers. The answers are provided by PRMS (www.prms.com), a manager of medical professional liability insurance programs with services that include risk management consultation and other resources offered to health care providers to help improve patient outcomes and reduce professional liability risk. The answers published in this column represent those of only one risk management consulting company. Other risk management consulting companies or insurance carriers might provide different advice, and readers should take this into consideration. The information in this column does not constitute legal advice. For legal advice, contact your personal attorney. Note: The information and recommendations in this article are applicable to physicians and other healthcare professionals so “clinician” is used to indicate all treatment team members.

In Part 1 of this series, you had just been served with notice of a lawsuit. The first two steps of the litigation process, the summons and complaint and the answer, were described. Important risk management tips were offered, including:

• Contacting your professional liability insurance company right away;
• Not discussing your case with anyone other than your attorney and professional liability insurance company representative; and,
• Not making any alterations to your records.
• Part 2 of this series explored the discovery process, motions, and whether to settle or defend a claim. Important risk management tips included:
• Being honest with your defense attorney;
• Following your defense attorney’s guidance;
• Providing specific treatment information and forwarding copies of treatment records to your attorney; and
• Preparing and reviewing your deposition testimony with your defense attorney.
• In this article, we will cover the next three parts of the litigation process: jury selection, opening statements, and calling witnesses.
  

The Litigation Process: Jury Selection

Voir dire is the process by which a jury is chosen. During voir dire, either attorney may dismiss a prospective juror “for cause” (i.e., prospective juror revealed information that might indicate a bias). The judge may also determine that a prospective juror should be struck for cause. Each side may also dismiss a prospective juror without stating cause—typically done because the attorney believes that the juror is likely to find against their client.

You are probably familiar with the concept of being tried by “a jury of your peers,” but you should be prepared for the fact that the jury will likely not be your peers, but rather a cross-section of your community, who has little or no medical knowledge. However, you can rest assured that your attorney will do their best to ensure that the jury picked will be conscientious and will do their best to understand the testimony and render a fair decision.

The Litigation Process: Opening Statements

Once the jury has been chosen, the trial begins with opening statements by each party’s attorney. The opening statement gives the attorney an opportunity to provide the jury with a frame of reference for the evidence that will be presented in the case.

Risk management tips

Your presence at trial is critical. The trial may last anywhere from a few days to several weeks. It is important for you to attend the entire trial. Your presence shows the jury that you are more concerned about the case than tending to business outside the courtroom. This is generally interpreted positively by a jury.

Remember also that the jury will be watching you the entire time you are in the courtroom and not just while you are on the witness stand. It is imperative that you remain attentive and maintain a professional demeanor.

The Litigation Process: Calling of Witnesses

Beginning with the plaintiff, each side will have the opportunity to call witnesses to support its version of the case.

Direct examination: This takes place when an attorney is examining a witness they have called to testify.

Cross-examination: Once the direct examination of a witness is concluded, the opposing counsel will have the opportunity to question that witness.

Redirect: Once cross-examination of a witness is concluded, the attorney who initially called the witness to testify will be allowed to “redirect” the witness for the purpose of allowing that witness to clarify any unfavorable remarks made during cross-examination or to rehabilitate the witness if their credibility has been brought into question.

After the plaintiff has called all its witnesses, the defendant will present its case following the same process.

Risk management tips

Prepare for your testimony with your defense attorney. An inaccurate or unfortunate statement can do irreparable harm to a case.

When you are called to testify, keep in mind the tips you learned for your deposition testimony.

While on the witness stand, engage the jury by directing your answers to them.

Listen closely to the question being asked of you and answer only that question.

Your appearance, mannerisms, and patterns of speech can influence the jury—review these factors when preparing to testify.

An attentive defendant can be of great assistance to their attorney by listening for discrepancies and erroneous statements and suggesting questions for experts.