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CROSS-EXAMINATION STRATEGY: Why MUST I Get Opposing Medical Expert to Promise Me a Few Things When I Begin to Ask Questions?

This is very important.

Cross examination is a search for the truth.

Cross examination is the highlight of every trial.

Cross examination is filled with drama.

Cross examination can show the witness is lying.

In a medical malpractice case in New York, cross examination is challenging.

The defense will bring in medical experts to dispute our claim.

These medical experts are often well credentialed.

Many of them are well spoken.

Many of them are knowledgeable in their field of medicine.

During the trial, when putting on a friendly witness, attorneys ask open ended questions.

Legally, this is known as a direct examination.

It involves asking who, what, when, where, how and why.

Those types of questions allow the witness to answer freely.

It gives the jury an opportunity to hear what happened and why.

Cross examination, on the other hand, is different.

During cross-examination, I never want to give the witness an opportunity to explain anything.

Instead, I want to ask leading questions.

I only want to witness to agree or disagree with me.

By asking leading questions, I am the one telling our side of the story.

The medical expert testifying for the defense wants to do everything possible to explain to the jury why he believes our case does not have merit.

My job during cross-examination is to confine the witness to answer only my questions and nothing more.

The challenge is that many of these medical experts know that if they have the opportunity to explain, they will take it.

That's why you will find young novice trial attorneys often have difficulty controlling opposing medical experts during cross examination.

After the defense attorney has finished questioning his medical expert, the judge now turns to me and says “Mr. Oginski, you may inquire.”

When I get up to cross examine this expert, I'm not going to begin asking him what records he reviewed.

I'm not going to begin asking him about his opinions.

Nor am I going to immediately ask him how much he is being paid.

Instead, I'm going to ask him to agree to a series of basic questions.

I'm going to get him to agree to the ground rules.

There is a key strategic reason why I need him to agree to these ground rules.

It's because when I ask him questions later on that he tries to weasel out of, I'm going to immediately bring him back to the promises he made to me when I began his questioning during cross-examination.

“Doctor, I'm going to ask you a series of questions that simply call for a yes or no answer. If you are able to answer yes or no, do you promise to tell me only yes or no?”

“If you find that you need to give me an explanation, do you promise to tell me that you cannot answer my question yes or no and to tell me you need to explain instead?" 

“If you cannot answer the question the way I phrased it, do you promise not to answer the question and simply tell me you cannot answer the question the way I phrased it?”

These basic promises are useful to hold the doctor in check when he begins trying to explain his answers.

Remember what I said earlier.

During cross-examination, I only want the doctor to answer yes, no, I don't know or I can't answer your question.

That's it.

Four different options.

No explanations necessary.

Keep in mind, in order for me to constain the doctor's answers, I must ask only leading questions that call for yes or no.

If I inadvertently ask him a question that requires him to explain and then try and cut off his answer, the defense lawyer will immediately jump up and object claiming “Judge, he just asked the doctor to explain and now he doesn't want the doctor to give an explanation. Please let the doctor finish explaining.”

That's why you will find the best trial lawyers in New York are ones who will only ask short leading questions on cross examination.

The moment a medical expert tries to explain any question, bring him right back to the promises that he made.

These promises are simple.

These promises are understandable.

If the doctor tries to explain even after redirecting him back to his original promises, the jury quickly sees that he's being slick and trying to ignore the promises he made earlier.

“Doctor, would you agree that failing to do A, B,  & C would be a violation from the basic standards of medical care?”

“Well, I wouldn't necessarily agree that it would be a violation from the standard of care because...”

“Doctor, do you remember the promise that you made to me a few moments ago at the beginning of my questioning?”

“You promised you would only answer my questions yes or no?”

“Was there something about my question you did not understand?”

"Since you understood my question, let me ask it again. Would you agree that a doctor who fails to do A, B & C would be a violation from the basic standard of medical care? Yes or no?”

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

“No problem Doctor. Let me ask you a different question. Would you agree that failing to ask the patient about their medical history on the first initial visit would be a violation from the standard of medical care? Yes or no?”

“Well, it's more complicated than that. You see, when a patient tells me they have a complaint...”

“Doctor, let me stop you. Do you remember your promise to me a few minutes ago?”

“You promised me that if you could not answer my question you would tell me without giving any explanation. Your number that?”

“Was my question unclear?”

“Are you able to answer my question yes or no?”

“Did I ask you for any explanation?”

"Well, is it yes or no?”

Here's why getting the doctor to agree to these simple little promises at the beginning of my questioning is so critical...

If I failed to extract these promises from the doctor at the very beginning, imagine the same scenario when I aske the doctor a simple yes or no question.

“Doctor, would you agree that before coming in to testify it would be important for you to read all of the patient's medical records? Yes or no?”

“Well, there's more to it than that. I need to also review the pretrial testimony. I need to review other records. I need to review the x-rays and CAT scans....”

The doctor will go on at length explaining every chance he can get.

If I try and interrupt him or cut him off while he is in the middle of explaining, the defense attorney will jump up out of his seat and yell out "Objection! The doctor is trying to answer the question as best as possible."

Even though I only asked for a yes or no answer, the judge is unlikely to restrict the doctor to just yes or no, especially if I did not get him to make those simple promises to me before I started my questioning.

“Doctor, when seeing a patient for the first time, would you agree it's critically important to obtain a thorough and detailed medical history?”

“Actually, no. Since this patient presented with a specific complaint, it was entirely reasonable for this doctor to focus only on that targeted complaint.”

You will notice that without extracting these simple little promises at the beginning of cross-examination, this type of questioning is ineffective.

It allows the doctor to shine his expertise on the jury and to explain away every issue and problem with our case.

It takes only a few moments to ask these basic questions at the very beginning and to get the responses needed in order to begin questioning the defense's medical expert in our search for the truth.

To learn more about cross examination in a medical malpractice trial, I invite you watch the quick video below...