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Attacking the Defendant

To prevail in a medical malpractice trial, the plaintiff's attorney must convince the jury that the plaintiff is more deserving than the defendant. Ideally, this would be done by building up the plaintiff; practically, it always involves some level of attack on the defendant. The plaintiff must provide testimony that the defendant's actions were below the acceptable standard of care. (See Chapter 6.) This in itself is a morally loaded accusation. The defendant's justification for his or her behavior affects the level of personal attack necessary for the plaintiff's case.

The most important consideration in assessing the strategy in a medical malpractice case is that physicians are held in high esteem in the community. Physicians win most malpractice cases that are tried because of this community respect. If the plaintiff maligns a physician whom the jury respects, the jury will be more difficult to persuade on the factual issues of the case. Conversely, if the plaintiff can successfully undermine the jury's confidence in the defendant, the defendant will suffer from the jury members' implicit comparison with their idealized notion of physicians.

These considerations also apply to attacks on the plaintiff. Attacks on the plaintiff's technical case can defeat the plaintiff entirely. Attacks on the plaintiff's character can reduce the potential damages in the case by lowering the value that the jury puts on the plaintiff's future earnings and so forth. Attacks on the plaintiff's character, if believed, can also reduce the credibility of the plaintiff's expert witnesses. While the testimony of witnesses should be seen as independent of the character of the plaintiff, if the plaintiff is not credible, it will be assumed that his or her witnesses are not credible either. There are plaintiffs (and defendants) whose personalities destroy their cases, irrespective of the underlying merits.

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