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The Anatomy of a Medical Malpractice Trial

If the parties cannot settle their case medical malpractice, hospital malpractice or doctor malpractice case after a pretrial conference, a judge will set the case down for a trial date. The trial process attempts to ensure that both plaintiff and defendant receive a fair trial.

The first step in any jury trial is to pick the jury! The selection process, known as voir dire, occurs in the courthouse, sometimes before the judge and always with opposing counsel present. The attorneys advise the jury pool of the lawyers they practice with and their potential witnesses to see if anyone has any prior knowledge of or experience with any of the named parties. After determining if there are any conflicts regarding witnesses, the attorneys will then ask the potential jurors questions in order to ascertain whether they can serve as unbiased interpreters of the facts.

Each attorney has a number of “preemptive challenges,” whereby a potential juror may be removed from a case without demonstration of cause. Additionally, each attorney may seek to have a juror removed for causethese challenges are decided by the judge.

Once a jury of six is selected, the trial will begin with the opening statements of each side. The attorneys for the plaintiff and the defendant use these statements to outline their case and their theories of law to the jury.

Following the opening statements, the plaintiff’s attorney will call witnesses and introduce evidence. The defendant’s counsel has the opportunity to cross-examine every witness the plaintiff calls. The plaintiff may then have a chance to conduct a re-direct questioning, followed by the defense’s opportunity for a re-cross-examination.

After all the plaintiff’s witnesses are called, the defendant’s counsel may move for a directed verdict, whereby the defendant alleges that the evidence and testimony provided by the plaintiff has not proved his/her case by a “preponderance of the evidence.” If the judge agrees with the defendant, then the case is decided in the defendant’s favor. Normally, though, this does not occur, and the defendant has the opportunity to present evidence. This process is very similar to the presentation of the plaintiff’s case. After the defense “rests,” i.e., completes the presentation of its evidence, the plaintiff may call rebuttal witnesses and present rebuttal evidence that refutes or discredits witnesses or evidence presented by the defendant.

After both parties have rested, opposing counsel give their closing arguments. These arguments allow the attorneys to review the evidence that was presented and to refocus the jury on their version of the case. The plaintiff’s attorney gives the first summation, followed by the defendant’s attorney. The plaintiff’s attorney then has the opportunity to give a rebuttal closing argument.

Following closing arguments, the judge will provide the jury with instructions or charges for deliberation. The judge tells the jurors to base their judgment solely on the evidence provided and the laws relevant to the case. These instructions are referred to as jury charges. Attorneys may request that specific charges be given to the jurors, but the eventual decision as to what charges to express is left to the judge. Once the jury has reached a verdict, it is announced to the court. The judge may accept, reject, or modify the verdict based on his or her interpretation of the case, at which point a judgment is entered.

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This entry was posted on Tuesday, March 31st, 2009 at 10:53 pm and is filed under Medical News. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

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