I saw it with my own eyes.
I heard it with my own ears.
If I were reading the trial transcript I wouldn't have seen it.

Yesterday, I was in New York County Supreme Court.
That's our trial level court.
Located at 60 Centre Street, in downtown Manhattan.

I had to be there for a conference on a case I was handling.
When I was done with my conference I started going from courtroom to courtroom to see if any case was on trial.
You'll notice that the best trial lawyers do that.

To sit in and observe other trial lawyers.
To watch attorneys question witnesses.

To watch lawyers argue about evidence and testimony.
To watch cross examination.
I love walking into a courtroom in the middle of a trial and immediately try to figure out what the case is about, who is on the witness stand and what's the key issue the attorney is trying to make in front of the jury.

Sometimes I can figure it out quickly.
Other times it takes a while.
Yesterday, after roaming the halls of the court house, I finally found a courtroom with an active trial going on.

I walked in.
The courtroom has that familiar 'old school' smell.
The smell of musty leather and well worn wood planks on the floor.

The doors to the courtroom are on swinging hinges and are ornate, leather-padded heavy doors.

I pushed the door open and entered an ongoing trial.
There were only two other people sitting in the back of the courtroom when I arrived.
The judge was paying close attention to the woman on the witness stand.

The jury was paying close attention to the woman on the stand.
There was an attorney standing near the end of the jury box, far away from the witness, asking open-ended questions.
I knew immediately this was the defense lawyer asking questions.

How did I know?
Because I know who he is.
He's a formidable opponent.

He's a worthy adversary.
He handles medical malpractice cases for doctors and hospitals.
He's a senior partner in one of the well-known defense firms in New York.

He happens to have a commanding presence in the courtroom that serves him well.
I've seen him go up against other good trial attorneys.
I've gone up against him myself many years ago.

Since he was asking open-ended questions such as "Tell us doctor..." and "Explain why this happened," I knew this was his witness. After a few moments of this type of questioning, I immediately recognized that this was his medical expert. He was asking her opinion questions. He was asking her whether the treatment in this case was appropriate based upon her review of the records.

I learned in just a few moments that this was a medical malpractice trial.
I learned that the case involved a failure to timely diagnose and treat a stroke resulting in pain and ultimately death.
I saw that the defense attorney was pleasant to the doctor and a few of the jurors were nodding along with the doctors' explanations.

That's never a good sign for the patient's attorney.
I also observed the jury's body language.
They were mostly relaxed.

None had their arms closed.
None had a scowl on their face.
Some were taking notes. (This judge allows jurors to take notes)

The answers this doctor was giving actually made sense.
That's a problem for the patient's attorney.
After about ten minutes, this defense lawyer finished his questioning.

"No further questions your Honor," he said as he sat down.

Just at that moment, without the judge having to say a word, the plaintiff's attorney (the patient's attorney) stood up and began his cross examination.

This is the high point of any medical malpractice trial.
Cross-examining the opposing medical expert.
This is where the drama occurs.

This is where the jury expects to see sparks.
The jury almost expects the opposing lawyer tear into the witness.
The best trial lawyers create so much tension with the witness that you can feel the tension in the air.

I've seen cross examinations that destroyed the experts' credibility and the jury let out a collective sigh of relief when the expert witness was finally excused from the witness stand. They felt bad for the doctor.

So what happened here?

The attorney asked an awful first question.
Just awful.
It was a stupid question.

It was an utterly ridiculous question.
It pointed out the obvious.
Something along the lines of "Doctor, if this patient was noted to have some level of pain, the patient wouldn't be dead, right?"

Say what?
What kind of nonsense question was that?
That's your first question?

Also, the plaintiff's attorney failed to lay the ground rules for the expert to limit her answers to just yes or no. 
That was a big mistake.

During his questioning, he asked her a question and as she answered "Yes, but..." and tried to finish her answer. 
The attorney immediately cut her off and said "You've answered doctor," moving quickly to the next question.
He did this a number of times.

What he didn't notice will likely affect the outcome of his clients' case.
He wasn't paying attention to the jury.
He was focused on what questions to ask this expert witness.

If he had bothered to glance at the jury, he'd have noticed one juror in particular get very angry every time he cut off the expert. The juror looked like he wanted to yell at the attorney to let her finish her answer. He couldn't, but that's exactly what his expression said.

Bad move.

Not only did the plaintiff's attorney not see the look the juror had on his face, but he never looked at the jury during his cross examination. Bad move.

This lawyer also made another mistake.
He failed to do a collateral attack.
He failed to ask her a single question about her fee.

He failed to ask her about her prior expert witness work.
He failed to attack her credibility except for asking whether her opinion would have changed if she had read the pretrial testimony of some family members.

There was no tension in the air.
There were no credibility issues.
The jury was not incensed with the doctor's answers.

Instead, I think at least one juror wanted to punch this attorney in the face for being disrespectful to the doctor.
The problem was that this attorney didn't even realize it.
What a shame.

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

Gerry Oginski
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NY Medical Malpractice & Personal Injury Trial Lawyer