In Louisiana, the plaintiff, or the person bringing a claim of medical malpractice has the burden of proving every element of the case by a preponderance of the evidence. This means that the patient must prove that a fact is more likely true than not. Something is more likely true than not if it is 50.1 % certain, instead of 50% true.
Not only must the patient prove that medical malpractice more likely than not occurred to him, but also that it is more likely true than not that the proven malpractice caused the injuries and damages claimed by the patient. If the evidence presented by the parties results in the jurors thinking it is a tie, the patient loses.The defendant health care provider does not have to prove anything. He can simply sit back and deny the allegations of the patient.
Organizing the case is critical to a smooth and efficient presentation at trial. There is nothing more distracting and noticeable to a jury than an unorganized attorney. The medical and legal issues are challenging even when one is well prepared and organized.
At trial, the order of evidence, witnesses and proof is usually presented in chronological fashion so as not to confuse the jury. If the facts or issues of a particular case dictate that an order other than the chronological sequence of events is necessary, that presentation should be simple and easy to understand.
The order of the witnesses is a critical trial decision. Should you call the defendant in your case? Should the plaintiff be first or last? Where do the experts fit into the testimonial scheme? The answer to each of those questions is it depends on the theory of the case and the strengths of the witnesses.
At trial, the most important thing to do with the expert witness is to spend the time and money to prepare him. Just because he is an expert in medicine does not mean he will fare well at trial. The attorney must go over the strengths and weaknesses of the case. The attorney must advise him of the theories and arguments that the defense will throw at him. He must give credible and non adversarial responses on cross examination.
At trial, the proper use of the medical record as an effective exhibit is critical.. However, the effective use of the record is not a last minute function. It is the culmination of planning that begins with the very first request for the records, the organization of the record, the correct interpretation of that record, and finally, the effective use of the record as an exhibit.
In sum, the presentation of evidence at trial can easily make or break the case. An experienced medical malpractice attorney knows how to present these cases so that the maximum effect will be achieved with the jury. Then, it is all in their hands.