Go to navigation Go to content

He's WRONG. The Defense Lawyer's Question is WRONG. Doesn't Make Sense. Can You Point Out His Mistake When You Are Being Cross Examined at Trial?

It's a medical malpractice case.

You sued your doctor.

For being careless.

For causing you injury.

Your case has merit.

A board certified medical expert confirmed you have a valid case.

You claim your doctor violated the basic standards of medical care.

You claim as a result of his carelessness, you suffered injury.

You claim that your injuries are significant and permanent.

Your doctor doesn't see it that way.

Your doctor denies he did anything wrong.

Your doctor claims that if he did something wrong, so did you.

He claims that your injuries are not as bad as you claim them to be.

The defense refuses to negotiate.

This is a “no pay” case.

The only way you're going to resolve your case is by going to trial and getting a jury verdict.

Fine.

You resign yourself to the fact that your case will take 2-3 years to resolve.

Yet you are confident that you will win.

Your attorney reminds you on more than one occasion that even solid cases with great medical experts can lose.

Maybe the jury won't like you.

Maybe they won't believe what happened.

Maybe they won't believe your witness where your expert.

There could be many reasons to explain why you might not be successful.

Your case has finally come up for trial.

It's been two hard-fought long years.

Your trial will be no different.

You can expect that the defense attorney will fight you every step of the way.

He will make arguments to the jury that will infuriate you.

He will ask the judge to throw out your case before a jury ever gets to decide whether you are more likely right than wrong.

During the course of your trial, you are one of the key witnesses.

You will testify.

You must testify.

The jury needs to hear from you.

They need to see you.

They need to learn how your injuries have affected you on a daily basis.

They need to judge your credibility.

Your attorney calls you to the witness stand.

You are ready.

Your attorney has prepared you.

He's gone over the types of questions he's going to be asking you.

These are open-ended questions.

They allow you the ability to explain.

Your attorney wants you to explain in detail what occurred.

He also wants you to explain what happened to you as a result of your injuries.

That's the only way the jury will understand.

You need to explain.

Your attorney questions you for over an hour.

It's strange sitting in the witness chair.

You're sitting in a strange environment.

In a courtroom.

You're sitting in front of six jurors, six strangers who will be judging your case.

You've never experienced this before.

You're asking six strangers from the community to decide whether you are more likely right than wrong that what you are claiming is true.

You're relying on their common sense.

You're relying on them following the law.

You're relying on them recognizing that you have a stronger case than your doctor.

During jury selection, these six members of the community have told your attorney they can be fair and impartial.

After your attorney has finished questioning you, called direct examination, it's now time for the defense attorney to question you.

Legally, this is known as cross examination.

Lawyers use different strategies when cross examining witnesses.

They use different strategies to question a hostile witnesses.

There are different strategies when questioning a sweet little old 80-year-old grandmother.

There are different strategies to use questioning children.

The real purpose of cross-examination is to get to the truth of the matter.

It's a chance to probe and expose weaknesses in the other side's case.

It's an opportunity to show that a witness maybe lying.

The witness might be shading the truth.

The witness may honestly not remember a key detail.

An attorney who cross-examines a witness has an agenda.

During cross examination, you will find that the best attorneys in New York ask only short, leading questions.

Why?

You never want to give the witness an opportunity to explain anything.

Instead, an attorney who cross-examines you is trying to tell a story.

In his own words.

The best way to do that is to ask short, leading questions that call only for yes or no.

The reality is that there are four ways to answer a well-worded question during cross examination.

The only available answers should be "Yes," "No," "I don't know," or "I don't remember."

I never want to ask a witness during cross examination "Why."

I never want to ask the witness to “Tell us more.”

I never want the witness to explain.

They have already explained their answers at length when they were questioned by their own attorney on direct examination.

I simply want the witness to agree or disagree.

What happens if the defense attorney asks you a confusing question during cross examination? 

Can you ask him to rephrase it?

Do you have to answer it even though it doesn't make sense?

Maybe he did not phrase the question properly.

Maybe it's a run-on question combining many facts that makes it impossible to answer yes or no.

Maybe the question is inappropriate and should not be answered.

There could be many reasons why an attorney's question would be improper.

Maybe the attorney does not remember certain facts in his question.

Maybe the attorney has misstated some of the testimony in his question.

If you recognize that the defense attorney asked you a question that is factually incorrect, do you have the ability to say “I'm sorry, I can't answer your question because it is factually incorrect?”

The answer is "YES."

You do.

In fact, you have an obligation to do so and to let the attorney know his question is factually incorrect.

It doesn't matter if the attorney has raised his voice when questioning you.

It doesn't matter if the attorney is yelling during his cross-examination.

Nor does it matter if the attorney is whispering.

If the defense attorney asks you a question which is factually incorrect, you have an obligation to tell him and point out to the jury that the question is inaccurate and you cannot answer it the way he asked.

In that instance, a smart defense attorney will simply re-ask the question a different way.

He will rephrase the question.

I have found that the best trial attorneys are able to think on their feet and re-ask a question 20 different ways.

That's what I do.

If an attorney objects to a question because I did not phrase it correctly, I will ask it many different ways.

I have no problem doing that.

The jury sees that I do not get upset when the defense lawyer objects to the way I asked my question.

Nor when the judge tells me to rephrase my question.

Just because you are being cross examined does not mean you give up the right to confront the defense attorney and show that he is wrong.

Just because you're being cross examined, does not mean you have to agree with the defense attorney's question.

A defense attorney's goal, at least one of them, is to show that you're being less than truthful.

He would like nothing more than to show you are lying.

He would love to show the jury that your testimony is inconsistent.

He'd love nothing more than to show that what you are saying today compared to what you said years earlier during your pretrial testimony is different.

He wants to catch you in a lie.

He wants to show inconsistencies.

He really wants to show the jury that you are not to be believed.

At the end of the trial judge will likely give the jury a legal instruction that says if you believe that a witness has testified falsely about one thing, you can disregard some or all of their testimony.

That legal instruction is called falsus in uno.

That's a fancy legal term that points out that a witness who testifies falsely about one thing may have testified falsely about more than one thing.

That's a powerful legal instruction.

Cross-examination is the pinnacle of any trial.

It's filled with lots of drama.

It's an opportunity to show you do not have a strong case.

It's an opportunity to whittle down your claims.

When done effectively, cross-examination can devastate you, your case and alter the outcome.

To learn more about cross examination, I invite you to watch the quick video below...


Gerry Oginski
NY Medical Malpractice & Personal Injury Trial Lawyer