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Trial strategy: Laying a foundation when asking a witness questions

When building a house, what is the first thing you must do? You must build the foundation that will support the entire house above it. If your foundation is flimsy, then there is a great likelihood that your house will never withstand the test of time and will collapse at some point in the future.

When questioning a witness at trial in a New York medical malpractice case, a car accident case or even a wrongful death case, it is oftentimes necessary to establish a foundation before asking follow-up questions.

Let me give you an example.

Let's say I am questioning a doctor at his pretrial question and answer session, known as a deposition. Let's also assume that the doctor operated on the wrong side of the patient's body causing injury.

I could begin questioning the doctor with the following series of questions:

“Doctor, tell me why you operated on the wrong side of Mrs. Jones's brain.”

“Tell me why there is a Timeout procedure that is in use in every hospital New York prior to picking up a scalpel and beginning surgery.”

Sometimes the defense attorney will yell out “Objection, there's no foundation.”

What this means is that I have not asked the baseline series of foundational questions so that this doctor can now begin to answer the direct questions I posed to him above.

Here is an example of some foundation questions, which by the way, I am not required to ask, even though the defense attorney believes I need to ask these first.

“Doctor, you know my client Mrs. Jones, correct?”

“Mrs. Jones has been a patient of yours for many years, correct?”

“On January 1, you were scheduled to perform brain surgery on her, correct?”

“In fact, you did in fact perform brain surgery on her on January 1, true?”

Those are basic foundational questions that establishes the doctor knows my client, and was contemplating performing some type of surgery on that date.

Watch the video to learn more...