Preparing a plaintiff for a medical malpractice trial is a balancing act at the best of times, says medical malpractice and personal injury litigator Duncan Embury.
Embury, of Torkin Manes Cohen Arbus LLP, was on hand for a recent Ontario Bar Association session on health care litigation, which featured a moot medical malpractice trial where the attendees were the jury.
Before the mock trial began of a case involving the purported negligence of a doctor, Embury explained some of the tricks and traps of prepping a plaintiff for a trial.
"On the one hand, you want to ensure that you come across assured, optimistic, and confident to your understandably nervous and emotional client, for whom the upcoming trial is likely to be one of the most significant and stressful events of their life," he explains in his paper.
"On the other hand, you need to make sure that the client is not lulled into a false sense of security regarding the real risks of trial, and that their expectations are properly managed."
Embury suggests that in the months leading up to a trial, counsel schedule a meeting with the client to have a frank discussion about the strengths and weaknesses of the case. The benefit to this is two-fold, he says.
"It makes the client feel like he or she is an active and accountable participant as the action advances to trial, and ensures that the client will take responsibility for some of the difficult strategic decisions that will no doubt have to be made in the coming weeks."
He also says it's key to discuss the potential cost implications of an unfavourable verdict. Make it clear, he says, that under a contingency arrangement while the client may not be responsible for your legal fees at an unsuccessful trial, they are responsible for satisfying the costs order requiring them to pay the defendant's fees.
This may also be a good time to discuss with your client the benefits of settlement. Embury explains this is a difficult discussion to have because clients can become increasingly emotional as they are repeatedly reminded about what happened to them.
"Their thoughts regarding the lawsuit may be more about punishment and revenge than about dollars and cents. It is important to remind the client that a civil trial will never be able to offer them the retribution they want ? all the judge or jury can do is attempt to quantify their often unquantifiable losses, and award a sum of damages that fairly reflects this."
The key is to talk realistically about what you can and can't achieve on the client's behalf and make sure they understand a medical malpractice trial is about recovering money at the end of the day.
But it's not all doom and gloom, Embury says. This is where the balancing act comes into play and lawyers should also be preparing the client to win. Counsel should be explaining how the trial will proceed, who will be in the courtroom, who will be sitting where, when they will be speaking, etc.
"I find it extremely important to prepare a client for the courtroom," he says. "It brings a lot of ease to the client's mind."
Embury says he often sends his clients to a courtroom beforehand, so they can witness the layout and processes first hand. As well, they should know that they will be assessed at all times in a courtroom and be aware of the portions of trial where there is a risk they may lose their composure.
"The best protection against potentially harmful outbursts or inappropriate responses from your client lies in proper protection," he says.
"While they may recognize that it will be an 'unpleasant experience,' the more examples that you can provide them with, the better. Review with them the portions of the defendant's discovery evidence that will likely upset them most. Remind them that defence counsel is simply doing his or her job.
"Most importantly, assure them that you will be vigilant about insisting that they are treated respectfully, and that they need to trust that you will be their voice."
Part of this preparation should involve a mock cross-examination, where counsel asks the hard questions and takes the client through the impeachment process so they are aware of what it means should it happen when they are on the stand, says Embury.
He says at the end of the day preparing your client for a medical malpractice trial is an often difficult but crucial undertaking.
"The malpractice trial is consistently one of the most lengthy and emotionally fraught judicial proceedings, and the plaintiff's role in the event is key," he says.
"However, by preparing them for both the best-case and worst-case scenarios, and clarifying what it is that they expect from you and that you expect from them, you will help ensure the best possible outcome at trial."