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Two competing candidates...Trump & Clinton. Fighting it out in front of millions of viewers. One moderator asking questions and trying to control the candidates. Is this what happens during a trial in a medical malpractice case in New York?

You might think so.

After watching the Presidential debates that took place tonight at Hofstra University, you might think that's what happens.

There are lots of similarities.

Let me explain.

In the Presidential race, you have two sides.

They oppose each other.

One says the sky is blue.

The other says the sky is orange.

Who's right?

One says he didn't oppose the Iraq war.

The other says he did.

Who's right?

One says she doesn't have the stamina.

The other says she does.

Who's right?

One candidate continuously steps over the moderator.

He takes control of the discussion, even rudely interrupting.

Sometimes he doesn't answer the question asked.

Instead, he goes off on a tangent, filled with his own hidden agenda.

She's then asked a question by the moderator. 

Rather than answer it directly, she replies to comments Trump made ten minutes ago.

The moderator lets this go on.

There's no fact checking by the moderator.

The moderator doesn't stop either of the candidates with authority.

Is this really what happens in a trial in a civil lawsuit here in New York?

The answer is no.

If this is how trials were conducted, nothing would ever get accomplished.

Witnesses would run roughshod over the attorneys.

Attorneys would interrupt the trial Judge without fear of penalty.

Forceful lawyers would control the questioning regardless of the judge's rulings.

That's not how any of this works in the justice system in State court here in New York.

 In fact, it would be a laughing joke if trials were held the way Presidential candidates debate each other.

Let's focus on the similarities.

In a trial you have two opposing parties.

In the Presidential debate you also have two opposing parties. One Republican. One Democrat.

They don't see eye to eye.

They both claim they can lead the country, but have wildly different ideas about how to achieve their lofty goals.

They bring their opposing viewpoints and campaign slogans to the debate to hash it out.

Let the American people decide.

Who is the better candidate who can lead us and protect us?

In a medical malpractice trial you have an injured patient on one side and a doctor or hospital staff on the other.

The patient contends that her doctor was careless.

She claims that his carelessness was a cause of her injury.

She also claims that her injuries are significant or permanent.

In order to validate that she has a good case, we are required to obtain a qualified medical expert who has either treated her or who has reviewed all of her records and confirms each one of those elements in order to proceed forward with a valid case.

In contrast, the defense routinely claims they did nothing wrong. "Hey don't blame me, I did nothing wrong!"

The defense always claims that even if they did something wrong, so did the injured patient. That's nothing more than trying to shift they blame to someone else. 

"Hey, don't blame Obama, you were Secretary of State when the Iran deal was getting started..."

Then, the defense always claims that the patient's injuries are not really as bad as she claims them to be.

At trial they will bring in their own medical experts to support these defenses.

So who's right?

Who is a jury to believe when you have two opposing viewpoints supported by experts on both sides?

Sounds similar to the two presidential candidates who faced off tonight during the Presidential debate.

There was not much agreement between Hilary and Donald.

Likewise in a malpractice trial, there is often very little the parties to the lawsuit agree upon.

In a medical malpractice trial, the defense often comes up with theories to show that they did nothing wrong.

Those arguments are contradicted by the injured patient and her experts.

How does a jury decide who to believe?

Does the judge give them guidelines at the end of the trial about how to decide this case?

Does the judge hint and who should obtain a verdict in their favor?

The reality is that the jury must use their common sense.

The jury must determine whether the injured patient and her witnesses are slightly more likely right than wrong that what they are claiming is true.

If so, then they are entitled to a verdict in their favor.

You should know that the trial judge does not provide the jury with any guidelines about how to decide this case.

Nor does the trial judge hint at who is entitled to a verdict in their favor.

The trial judge is required to be impartial.

There's something else you need to know that distinguishes Presidential debates from civil trials here in New York.

The trial judge controls what happens in the courtroom.

He is the authority.

His authority is backed up by court officers, if needed.

The judge decides when court starts, when breaks are taken, when lunch is taken and when court ends for the day.

The judge decides what witnesses will testify.

The judge decides whether questions that are posed by the attorney are proper.

The judge decides what evidence gets admitted for the jury's consideration.

The judge will not tolerate disrespectful attorneys.

The judge will not tolerate attorneys who speak over and yell over the judge.

If the judge feels that an attorney or a witness is being disrespectful and not following the court's rulings, he has many options available to penalize the witness or the attorney.

That could seriously jeopardize their case.

Contrast that with the moderator in a Presidential debate.

The moderator has little authority.

He has no power to stop the candidates in mid-sentence.

He can try, but will likely talk over him, trying to make their point.

The moderator can only ask a question, prompting verbal replies that have little to do with answering the original question.

Let's talk about cross examination for a moment...

The role of an attorney who cross-examines a witness is vastly different than the role of a moderator at a debate.

A moderator is there to pose questions, keep the candidates on schedule and try to get them to answer the question he poses.

The operative word is 'try'.

A candidate who doesn't respond directly suffers no penalty or consequence for not answering the question directly.

An attorney who gets up to cross-examine a witness does something totally different.

A lawyer who goes to cross-examine a witness is there to search for the truth.

He's there to expose lies.

He's there to show the jury that a witness may be less than truthful.

An attorney's goal in cross-examination is to expose contradictions for the jury to evaluate and decide whether this witness is credible.

Unfortunately, the moderator in these Presidential debates does not take on the role of a cross examiner.

In my opinion, that's a shame.

I think a moderator should be a prosecutor who has tremendous experience cross-examining witnesses.

If a witness at trial fails to answer an attorney's question on cross-examination, that would be totally unacceptable.

An experienced trial attorney would not tolerate a witness evading their question.

Imagine this scenario a medical malpractice trial...

I get up to cross-examine your doctor who you have sued.

 I get him agree to a few ground rules before I ask him any questions.

“Doctor, I'm going to ask you a series of questions. These questions call for yes or no answers. If you can answer yes or no, will you promise to do so?”

“If you are unable to answer my question yes or no, do you promise to tell me that you cannot answer my question yes or no?”

The doctor has to agree to answer my question yes or no and he has to agree to tell me if he can't answer my question yes or no.

These simple questions will prove important the moment the doctor begins to evade my questions.

“Doctor, would you agree that it is important for a physician to perform a detailed physical examination on a patient?”

“Well, I don't necessarily agree about performing a detailed physical examination,” the doctor responds.

That prompts me to remind the doctor about my ground rules and what he just agreed to.

“Doctor, a moment ago you promised to answer my questions yes or no. Is the answer to my question yes or no?”

“I guess I can't answer your question yes or no.”

“Doctor, would you agree that it's important that after conducting a physical examination that you record the details of your examination and your findings in your notes?”

“Well, I don't agree that it's important to record every aspect of my physical examination and my findings.”

Again, the doctor has refused to answer my questions head on. Either yes or no or I can't answer your question.

No explanation needed.

No explanation asked for.

“Doctor, do you remember few moments ago you promised to answer my questions yes or no?”

“Yes.”

“Is the answer to the question I just posed yes or no?”

“Well, I can't answer the question the way you phrased it because I don't agree with parts of it.”

“Doctor at any point in my question about recording your physical examination and your findings, did I ask you to provide me an explanation?”

“No.”

“Great. Let me ask the question again. Doctor, would you agree that it's important that after conducting a physical examination that you record the details of your examination and your findings in your notes?”

“I can't answer the question the way you phrased it,” the doctor again repeats.

My goal as an attorney cross-examining this witness is to show the jury that his evasiveness creates a problem with his credibility.

If he can't answer these simple questions easily, what does that tell you about his credibility?

The jury has every right to believe he is being evasive for a reason.

The jury can conclude that the doctor is being less than truthful.

Just like in the debates, the American people can judge which of these Presidential candidates are being truthful, which are being less than truthful and which are outright lying.

My goal when conducting cross-examination is to ask direct, leading questions which simply call for yes, no, I don't know or I can't answer that question.

A moderator doesn't come close to cross examining either of the presidential candidates during a debate.

To me, that is a shame.

As an attorney who has questioned countless doctors during the course of my 28 year career, I think the American people would benefit from having a real cross examination of each of these candidates during the debates.

By holding the candidates to the fire and getting them to answer questions directly, we'd have a better understanding of what their policies really are, where they stand and how they plan on accomplishing their goals rather than simply getting more rhetoric and campaign slogans.

Let me share with you a trial attorney's secret...

A trial attorney conducting cross examination has an agenda.

This point is similar to each of the Presidential candidates.

A trial attorney's agenda is to get the opposing witness to agree with you, disagree with you or say he can't answer.

When I cross-examine a witness, I ALWAYS ask leading questions.

I NEVER allow the doctor to explain anything.

A leading question is one that simply calls for the doctor to either agree or disagree.

"Doctor, you graduated from Harvard medical school correct?"

That's an example of a leading question.

I am making a statement.

The doctor is not asked to explain anything.

I didn't ask the doctor "Where did you go to medical school."

Instead, I made a statement.

Either the answer is yes or no.

"Doctor, on January 1 you examined my client, true?"

Again, another leading question.

An example of a 'direct examination' is totally different.

That happens when I put a friendly witness on the stand to testify.

In that instance I WANT the witness to explain.

I will ask "Who, what, where, when, how and why" questions.

But not during cross-examination.

Another goal during cross-examination is to establish in the doctor's own words what the standard of care was when treating a patient with the same problems that my client had.

If done correctly, I will already have established this information during the doctor's pretrial question and answer session that took place earlier in the lawsuit process.

When I cross-examine a witness, I will also ask the doctor hypothetical questions.

Hypothetical questions with specific facts that we believe to be more likely true than not true.

Ultimately, if the jury believes our set of facts as more likely true, then the doctor will have already agreed that failing to do certain things would be a departure from good medical practice.

“Doctor, I'm going to be asking you a series of hypothetical questions. For the purposes of my questions you are to assume the following facts are true...”

“I want you to assume that Mrs. Jones presented to your office on January 1 with the following complaints...”

“Assuming those facts to be true, would you agree that good medical care required that you take a detailed, thorough history of this patient?”

He has to say yes.

“I want you to assume that you conducted a physical examination on this patient and found the following things...”

“Would you agree that good medical practice required you to record your physical examination and your findings in your notes?”

Again, he has to agree.

"Would you agree that a physician who failed to document his physical examination and his findings would be a violation of the basic standard of medical care?”

At this point he's likely going to argue with me claiming that not recording all of the necessary information is simply a record-keeping error as opposed to a violation from the standard of good medical practice.

“Would you agree that a patient who presents with symptoms A, B & C, you must formulate the most likely possibility and then proceed down toward the least likely possibility?”

Again, he has to agree.

"Medically, doctors call this a differential diagnosis, correct?”

“Yes.”

"When you are considering multiple medical conditions responsible for this patient's problems, would you agree that it is critical to perform various diagnostic and clinical tests to rule in or rule out the most likely condition this patient presents with?”

He has to agree to this.

"Would you agree that a physician who fails to consider the most likely condition down to the least likely condition would be a violation of the basic standards of medical care?”

“I do not agree.”

“If you determine that the patient does not have the most likely condition you originally thought, would you agree that it is important for you to perform various clinical tests and diagnostic tests to rule in or rule out the next most likely condition?”

“Yes.”

"Would you agree that a physician who fails to consider other possible medical conditions and fails to perform diagnostic & clinical tests to rule out the next most likely condition would be a departure from good medical practice?"

He won't like to answer this question, but he has to agree.

"Doctor, can you show us anywhere in your medical notes where you considered a differential diagnosis for this patient?”

“I did not record it.”

“Doctor, would you agree that a physician who considers a medical condition but fails to perform various diagnostic and clinical tests to rule in or rule out the condition would be a clear violation of the basic standards of medical care?”

The doctor, not wanting to implicate himself tries to evade the question by saying “I cannot answer the question the way you phrased it.”

Now, if this were to occur during the presidential debates, the moderator would let off the candidate without pursuing this line of questioning.

A trial attorney, by contrast, would never let this go unanswered.

A good trial attorney must make the point that this witness is trying to evade the question.

An experienced attorney must alert the jury that there are red flags about this witness's credibility.

I asked earlier in this article how does the jury know whom to believe when you have two opposing arguments by the opposing parties?

The answer has to do with credibility.

Who does the jury believe is more likely right than wrong?

At the end of the trial the judge will tell the jury that they must evaluate whether the injured patient is more likely right than wrong that what she is claiming is true.

In fact, everything is to be viewed through the prism of whether the injured patient's claims are more likely right than wrong.

If so, then she is entitled to a verdict in her favor.

Getting back to the presidential debates and the comparison between the moderator and a trial attorney conducting cross examination, we see that there is very little in common between the role of moderator and the role of a judge or an attorney conducting cross examination.

In reality, the debate moderator seems to be just an entry point for the candidates to begin their pitches selling themselves to the American public.

Lester Holt is not there to contradict the candidates claims.

Nor is he there to fact check their statements.

Instead, he's there to allow the candidates opportunities to briefly answer his question and then go off and make whatever other campaign arguments they think will help sway voters in their favor.

A medical malpractice trial is totally different.

The rules are different.

There are significant repercussions for lawyers and witnesses who fail to follow those rules.

If court were to take place the way that debates occurr, there would be pandemonium and a circus like atmosphere.

Nothing would be accomplished. Ever.

I'm glad that our court system does not run the way our presidential debates are run.

Regardless of what you feel about our two presidential contenders, Trump and Clinton, the fact remains that the debates are an entertainment spectacle.

It's like two teams facing off hoping that there's some blood and gore that comes out of this fierce battle within 90 minutes.

Viewers are hoping for a significant knockout punch or zinger that knocks out an opponent in one fell swoop.

You think this doesn't happen in a trial?

Actually, sometimes it does.

Sometimes there are personal feuds between the opposing trial attorneys.

Sniping sometimes occurs between the attorneys.

Some opposing attorneys are vicious opponents.

Sometimes, the attorneys get personal when they make objections and arguments to the court and to the jury.

It is a smart judge who swiftly shuts down that type of nonsense and forces the attorneys to play by the court's rules.

I only wish the Presidential debates took place the same way.

To learn more about how medical malpractice trials work here in New York, I invite you watch the quick video below...