Excerpted from SEAK’s stream on-demand course, “Medical Malpractice Survival Training for Physicians”
Be honest with counsel, okay? Everybody has skeletons in their closet or people… You know, you might have concerns about the specific care. You need to talk to counsel and let them know what your concerns are regarding the case or if there’s any particular skeletons in your closet that you’re afraid are gonna come out and affect your credibility. Why do you need to tell counsel that? Not because, you know, they’re your psychiatrists and they’re gonna help you work it out, help work out guilt feelings from long ago but they may be in a position to block that information from ever going in front of the jury, okay? So you need to let them know that ahead of time.
The question is, is it the judge that hears those motions to exclude evidence? Yes, the judge makes the decisions on the law and what evidence the jury gets to hear. And so the example there is that I put in the book is a defendant doctor fails the medical boards three times before he finally passes them. And so the doctor is embarrassed about that, right, and doesn’t want that to come out. Well, you know, if he doesn’t tell his counsel, then that issue may come up in front of the jury, okay? The plaintiff’s attorney might ask the question, all right? And so say, “Didn’t you fail the boards three times?” And then, of course, defense counsel is gonna jump up and say, “Objection.” And the judge might sustain it. But what happened? It’s already been heard. And so, think about that scenario where the defendant was not honest with counsel. Now think about this scenario. The defendant has told counsel about this issue, the defendant files a motion in limine, which is a pre-trial motion with the judge, and said, “Look, Judge, I asked that the other side be excluded from bringing in evidence that the defendant failed their boards three times. It’s not relevant to any of the issues and that it should not be put in front of the jury because it’s unduly prejudicial. It’s only gonna be put there to embarrass the defendant. It has nothing to do with the defendant’s credentials.” And the judge grants that motion. Now the jury has never heard it. Okay? But because the defendant was honest with counsel, counsel was able to use that legal maneuver. And so that’s why it’s very important to be honest with…