You know the answer, right?
At least you think you know the answer, right?
C'mon...tell me what you think.
The answer is "Of course he can!"
Ok, that's the end of the article...
Not really.
You see, the judge controls everything that happens in the courtroom.
The judge controls when trial starts each day.
The judge controls when we finish for the day.
The judge controls when we break for lunch.
The judge controls what witnesses will be allowed to testify.
The judge controls what evidence gets admitted for the jury to evaluate.
The judge decides what questions can and cannot be asked.
The judge tells the jury what they must do during trial and also at the end of trial.
The judge gives the jury warning instructions every time they are sent home for the day.
The trial judge controls everything that happens during your trial.
When an attorney is questioning a witness, there is a possibility that the judge may not understand something.
The judge might be confused about certain testimony.
The judge might want clarification.
The judge can raise an objection on his own without an opposing attorney standing up and yelling “Objection!”
The trial judge has the discretion to interrupt an attorney who is questioning a witness.
The judge has the ability to turn to the witness and ask him a question.
The judge has the ability to hold a witness or an attorney in contempt for not following his orders.
A trial attorney would like to believe, in their mind at least, that when they question an opposing witness during cross examination, that they will be no interruptions.
A trial attorney fantasizes his cross examination will go beautifully and the witness will break down, quivering in his seat.
The reality is that it does not happen that way.
Opposing witnesses rarely, if ever, break down on the witness stand.
Opposing witnesses rarely admit that what they just testified about is totally false and incorrect.
Opposing witnesses often have questions about the questions they are being asked.
In addition, opposing attorneys love to interject and disrupt a lawyer who is questioning a witness in order to throw the lawyer off-track.
There are many instances where an attorney has no choice but to stand and object to a particular question or to certain evidence.
Let me share with you the example of how this happened to me many years ago when I represented a urologist in a medical malpractice case in New York County.
The doctor was accused of botching surgery.
More specifically, the doctor was accused of leaving a surgical instrument inside his patient.
This particular patient had a hernia and needed a hernia repair.
The urologist, practicing in Manhattan at the time, told the patient that he was well-qualified and done these procedures hundreds of times.
The patient agreed to have surgery.
Surgery went beautifully.
There were no complications.
Until the surgeon was suturing the wound closed.
During the course of suturing, the tip of the needle broke off and went into the surgical wound.
The surgeon spent five minutes looking for the broken needle tip.
He could not find it.
He spent another five minutes looking for it.
He couldn't find it.
He opened up the incision to reveal more of the surgical site.
He still couldn't find it.
He spent approximately 15 minutes searching for this needle tip.
All unsuccessfully.
For multiple reasons, the doctor chose not to get an intra-operative x-ray to try and identify where this needle tip was.
He came to the conclusion that the needle tip would never cause this patient any problem and would never migrate away from the surgical site.
You can sense a bit of foreshadowing in that last sentence.
After surgery, the surgeon told the patient that everything went beautifully.
He said there were no complications.
He never, ever, told the patient about the tip of the needle breaking off.
Fast-forward three years.
The patient developed severe back pain one day that would not go away.
It was unrelenting.
It was constant.
The patient had not been in any accident.
The patient was not involved in any trauma.
The patient did not understand why he was having such significant back pain.
He went to an orthopedist who immediately took x-rays.
The orthopedist called the patient in to look at the x-ray.
The orthopedist was troubled.
The orthopedic doctor asked the patient whether he had recently had surgery to his back.
The answer was 'no'.
After a moment of reflection, the patient said he had a hernia surgery three years earlier.
The orthopedist said “Regardless, there's some sharp object inside of you that needs to come out. We need to schedule you for surgery.”
The patient underwent the surgery and low and behold what do you think he found?
He found the missing needle tip that was responsible for this patient's ongoing and aggravating pain requiring this surgery to remove it.
Needless to say, this patient brought a lawsuit against the urologist.
His lawsuit was actually timely since it was brought within one year from the date he discovered this needle tip inside of him.
This needle tip was not something that was designed to remain inside of him as part of the hernia repair.
That meant that he had one year from the date of discovering this foreign object within which to file a lawsuit against the urologist.
Having now described the facts leading up to the lawsuit, you should know that my client, the urologist, refused to settle this case.
He refused to acknowledge that he did anything wrong.
This physician claimed that the breaking of a needle tip was unknown, recognized risk of any surgery.
He argued that even if they had located the needle tip a day after surgery, the patient would still require surgical intervention and his damages would be the same.
Back then, more than 25 years ago, the doctor had the ability to tell his insurance company that he did not want to settle the case.
Since the doctor refused to give his blessing to the insurance company to try and negotiate, the insurance company had their hands tied.
That meant that the case had to go to trial.
That meant the jury had to reach a verdict to decide whether the injured patient was more likely right than wrong that what he was claiming was true.
The attorney who represented the injured patient was a young, novice attorney.
He came from a very well known and well respected medical malpractice law firm that represented injured patients in New York City.
As part of his strategy, he decided to call my client as his first witness.
There are many reasons for doing this.
It gives the attorney an opportunity to tell the jury, through the doctor's own words, exactly what happened and why.
Using this strategy, the jury immediately began to understand what the standards of care were for this patient.
If the attorney has prepared carefully during the pretrial litigation phase, it is sometimes possible to get the doctor to admit that he violated the basic standards of medical care.
In this case however, the doctor was relentless.
He was adamant.
He had no remorse.
He was arrogant.
He was cocky.
He felt he did absolutely nothing wrong and had nothing to apologize for.
I could see the jury's expression.
They were incredulous.
The jury didn't believe him.
The judge didn't believe him.
To be blunt, I didn't believe him.
After the plaintiff's attorney was done cross examining this urologist, it was my turn to begin my direct examination of my own client.
This gives the doctor an opportunity to explain to the jury what he did and why.
Using open-ended questions such as who, what, where, when, why and how, it allowed the doctor, in his own words, to tell the court and jury exactly what he did and his rationale for doing it.
The biggest issue I needed to address during my questioning was why the doctor did not tell the patient about this needle tip after surgery.
He answered that he did not expect it to migrate anywhere in the body.
He did not expect it to cause the patient any harm.
Yet when he was asked earlier by the injured patient's attorney why the patient developed pain three years after his surgery, the doctor admitted it was from the needle tip.
I was asking the doctor why he didn't tell the patient about the needle tip.
The doctor said "The patient didn't need to know."
My jaw dropped.
The jury just stared, dumb-founded.
The judge did a double take wondering if the doctor just said what he thought he said.
As I was about to ask another question, the judge interrupted me.
“Excuse me Counselor I want to ask the doctor a few questions...”
This was a well known and well respected judge.
He was sharp.
He knew what he was doing.
He knew something was fishy with the doctor's testimony.
He began asking questions to satisfy his own curiosity.
He couldn't believe what he heard coming from this board certified urological surgeon.
The moment the judge asked my client a first question, I jumped up on my feet and yelled out loudly “OBJECTION JUDGE! That question is not appropriate!”
The judge looked at me like I was an alien.
It looked as if he had steam coming out of his ears.
For a fraction of a second I thought he was going to start cursing at me.
He told me to sit down and noted my objection for the record.
The judge then asked a second question.
This one was more probing.
I jumped up again and yelled out “OBJECTION JUDGE! That question is not appropriate!”
The judge turned to the doctor and said “I want you to answer my question doctor.”
The doctor meekly turned to the judge and answered him.
The judge then went on for a few more questions.
If you were sitting as an observer in the courtroom, I looked like a yo-yo jumping up and down every time the judge asked a question.
You might be asking whether it's appropriate for an attorney to object to a judge asking the witness questions.
Not only is it legally appropriate, but it's required if an attorney believes the judge's question are inappropriate and improper.
But here's the awkward dilemma when this occurs...
Who is responsible for what goes on during a trial?
The judge.
Who is responsible for making legal rulings when an attorney makes an objection?
The judge.
When the judge questions a witness to clarify something, if an attorney jumps up and makes an objection, who do you think makes a ruling about whether or not the judge can continue asking the question and then demanding an answer?
The answer is again, the judge.
If the judge has a pressing question and feels the need to ask a witness a question, and the attorney objects to the question, do you really think the judge is going to stop for a moment think about it, and then say “Wait just a second... I was going to ask a clarifying question, but since you objected, I'm going to hide under my desk for a while until you ask the next question.”
That's not going to happen.
Instead, the judge turned to me in a loud voice said “COUNSELLOR, ALL OF YOUR OBJECTIONS ARE NOTED FOR THE RECORD. NOW SIT DOWN AND BE QUIET!”
In the span of two minutes, this trial judge destroyed my chance to rehabilitate my client in front of the jury regarding what he did and why.
The biggest issue in this case was not the fact that the patient suffered a complication involving a needle tip that broke off during suturing.
If that's all this case was about, I could have easily defended it and won that case.
However, that wasn't the key issue in this case.
What the jury hated was that this doctor never told the patient about it.
That was inexcusable.
The jury was loud and clear in their verdict about what they thought of the doctor's defense.
They thought he was full of it.
They thought he was arrogant.
They thought he was cocky.
They thought it was unforgivable that he never told the patient what happened because he didn't feel it was necessary.
To recap, can they judge interrupt an attorney during the course of questioning a witness if he wants something clarified or explained?
The answer is an obvious yes.
