Thomas G. WitkopLaw Offices

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Going to Trial Requires Preparation from Day One

while I was in the Circuit Court for Montgomery County I stopped to watch a simple car accident case. the plaintiff was heading southbound on a road. the defendant was heading northbound andbegan to make a left turn which resulted in an accident. The plaintiff went to the emergency room complaining of headaches, neck ache and low back pain. he stated that he smacked his head into the steering wheel and bruised his head.Thereafter he went to his treating physician two times for follow-up care.

I watched the testimony of the plaintiff's treating physician as well as the testimony of the plaintiff. The direct testimony of the plaintiffs Dr. and the direct testimony of the plaintiff himself went smoothly enough.

It became rough for both the doctor and the plaintiff during cross examination by the defense attorney. The defense attorney clearly had memorized the deposition testimony of the plaintiff and had memorized the medical reports of the plaintiff's doctor.

Small omissions in the medical records and lapses in memory called into question the competency of the medical treatment and the credibility of the plaintiff.

The emergency room records only listed that the plaintiff had suffered from a neck injury. There was no mention that he complained of hitting his head or that his low back hurt. In fact, the emergency room doctor had noted that there was no concussion and no bruising. This contradicted what the plaintiff said on the stand.

When the plaintiff went to his doctor the records did not indicate anything about low back injury nor did it indicate anything about concussion or bruising on his head. This also contradicted what to the plaintiff said on the stand.

I believe that the plaintiff told the emergency room of his problems and told the doctor of his problems but the doctor either didn't hear what the plaintiffs said or forgot to write it down or perhaps the person that transcribes the notes forgot to put it in. The plaintiff's doctor was not prepared for cross examination on these errors. Preparation for the discrepancy in information would have at least allow the doctor to give a credible explanation to the jury why these items were missing in the medical record but did exist in the plaintiff situation.

On the witness stand the plaintiff testified that his speed prior to the accident was 30 mph. The defense attorney immediately turned to the plaintiff's deposition and proved that his prior testimony was that he was going no faster than 25 mph. The plaintiff stated that the accident caused him so much pain that he could no longer exercise and that he gained weight. He testified that just prior to the accident he was 215 pounds and then gained 45 pounds. The defense attorney grabbed the doctor's records and showed that two weeks before the accident the plaintiff was at 238 pounds and three months after the accident he was at most at 245 pounds. Again, the plaintiff should have been consistent in his testimony and should have been certain in his testimony. A review of his deposition transcript prior to trial as well as his medical records would have helped better prepare him for the trial.

These may seem like small matters but they can affect how a jury looks at the case. Is the plaintiff lying or just mistaken. If the plaintiff is mistaken about one matter, Mikey just as likely be mistaken about another matter. Is the doctor sloppy and forgetful? If so, can we put much weight on the doctor's opinion?

There are only 24 hours in a day and it is difficult to anticipate all the problems in a case but there will be problems in a case no matter how good it is. If you are going to go to trial you must prepare for it.
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