You have already suffered the indignity of being the victim of medical negligence. You, or a loved one, has been seriously injured or killed by a doctor, nurse or hospital that engaged in conduct that fell below the standard of care for a well-qualified healthcare provider under like or similar circumstances. You have been forced to relive this tragedy over and over again when you interviewed your lawyer, answered written discovery, gave a deposition, participated in mock trials and/or focus groups and were forced to attend fruitless mediation sessions. The indignity is compounded by the smugness of the defendants and their attorneys and their unwillingness to accept their part of blame for your suffering, grief and sorrow. Your case is going to trial. What should you expect?
Trial can be terrifying for a plaintiff in a medical malpractice case. Going to trial means uncertainty. Going to trial means that the fate of your case will be decided by a jury of 12 people who do not necessarily know and understand the depth of the tragedy that you have experienced. It is the job of your attorney to make the experience of trial as comfortable for you as possible.
In Cook County, where we do a lot of our trial work, the trial date is assigned months before the trial by the presiding judge of the Law Division. On the day of the actual trial, your case is assigned to a trial judge at random by the court computer. Once you are assigned to a trial judge, and assuming that none of the parties ask for a substitution of judge (every party has the right to change trial judges one time by statute) then the trial can actually begin. Usually the parties receive a call from the trial judge once the case has been assigned for trial asking them to appear before the judge at a certain time. The judge will usually spend some time talking to the lawyers and learning a little about the facts of the case. Depending on the judge, some time might be spent trying to mediate a settlement. Some judges are very good at brokering deals for settlement and some are not. Depending on the judge’s level of interest you might spend hours or days trying to reach a settlement agreement. The parties also will exchange motions that are known as motions in limine. These motions are meant as a device to limit evidence or argument that might be presented to the jury. Once motions conclude, the judge will call up a venire of jurors for what is known as voir dire. Voir dire is the lawyers opportunity to see and speak to prospective jurors make sure they are appropriate to serve on the jury. Once the jury is selected, the lawyers can begin the presentation of evidence. This typically begins with an opening statement, which tells the jury what the evidence will show, and ends with a closing argument, which is a lawyer’s presentation of what the evidence means. After closing arguments, the jury gets the case, deliberates and renders its verdict according to the law provide by the judge.