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Select a jury. Deliver opening statements. Present evidence. Cross-examine witnesses. Deliver closing arguments. Await the verdict.
You will select jurors from the pool of available jurors called into court on any given day. To identify good jurors, the lawyers will ask them questions, in a process called "voir dire." You will want to identify jurors who are prejudiced against your case. Some jurors may fear that a large verdict for you will impact their ability to secure medical care. Your attorney can draw out prejudices by asking jurors if they or a family member have studied medicine, if they know of someone who has brought a medical malpractice suit, and whether they have had any particularly good or bad experiences with doctors or hospitals. Alternatively, you may present the case to the judge. In a normal trial, the judge decides questions of law and the jury decides facts. But you have the option of using the judge to determine the facts as well. One study showed that you are twice as likely to win a bench trial as a jury trial. Generally, both parties must agree to a bench trial. If one party requests a jury, then there typically is a jury trial. In the opening statement, your attorney highlights the evidence he will present. Opening statements are not evidence themselves. Rather, they provide a sneak peek as to what evidence will be presented. An effective opening statement will get to the point (fifteen minutes or less) but also tell a narrative. Your attorney should also disclose "bad facts" in the opening statement. A bad fact is anything the defense would want to bring to the jury's attention because it makes the defense case much stronger. For example, your failure to follow your doctor's prescribed treatment is a bad fact. By disclosing bad facts first, your attorney can take the sting out of them. As the plaintiff, you will present evidence first. You will call and examine witnesses and get records admitted into evidence. You will be called as a witness, to testify as to what you remember about the treatment you received from your doctor as well as about the injury you suffered. You will be limited to testifying about what you saw, heard, and physically felt. You cannot testify that you believe your doctor's treatment was negligent. Your attorney will also call an expert witness. The expert will testify as to what treatment a competent doctor would have given in the situation, and then she will compare your doctor's treatment to that standard. Unlike a lay witness, an expert may offer an opinion, i.e., that your doctor's treatment fell below the required standard of care. Your attorney will have the opportunity to cross-examine the defense's witnesses. Your attorney will try to impeach the witness with a prior inconsistent statement or otherwise try to show gaps in the witness's testimony. Your attorney will also question the defense expert witness. He will try to undermine the expert by questioning his credentials and by asking him about the fee he will be paid for testifying. Your lawyer may also try to impeach the expert through use of an expert treatise that contradicts the testimony given by the expert. The closing argument is your lawyer's chance to explain how the evidence presented should command a result in your favor. In a bench trial, the court will often request that the attorneys write briefs. These are legal arguments, which cite to the evidence presented as well as to the controlling legal authority. In a jury trial, the jury will retire for deliberations. In about half of all states, jury verdicts for civil trials do not have to be unanimous. Instead, a plaintiff can prevail if 10 out of 12 jurors decide for her.