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TRIAL STRATEGY: During Cross Examination, Can Opposing Lawyer Use Something You Said in the Past Against You?

The answer is yes, he can.
Anything you've said in the past that is inconsistent with the testimony you give at trial can be used to cross examine you and show the jury that your testimony may not be as truthful as you make it seem. 

Now, how exactly does this work?
Let's say you sued your doctor for medical malpractice.
Your doctor denies your claims and says "I'll see you at trial."

During the court of your lawsuit, you will be required to answer questions from the doctor's attorney.
This will take place in your attorney's office, in his conference room.
There's no judge present nor is there any jury present.

There is however a court stenographer to record all the questions you're asked and all the answers that you give.
Those questions and answers are later transcribed and put into a booklet called a transcript.
The answers that you give is your sworn testimony.

Even though there's no judge or jury in the room when you're answering the opposing attorney's questions, your answers carry the same exact weight as if you are testifying at trial.

That question and answer session is commonly referred to as a deposition.
Lawyers also call it an examination before trial.
When your case comes on for trial, you can be sure that the defense lawyer, during cross examination, will be asking you many of the same questions he asked you during your pretrial question and answer session.

If, for whatever reason, your answer is materially different from what you said during your pretrial deposition, the the attorney can show the jury that your answers may now be less than truthful. He will confront you with your statement or your answer that you gave a year or two earlier. He will show the jury that your answer today at trial is significantly different that what you said earlier.

Let me give you an example of how this works...

You're at trial.
Let's say it's a car accident case.
You sued the person who hit you when you went through the intersection.

Your lawyer is asking you open-ended questions now.
He's asking you to explain. "Tell us what happened as you approached this intersection..." he says.
"What happened then?" he asks.

After you've finished answering your lawyer's questions, the defense attorney gets up to cross examine you.

"Mrs. Jones, you told us a moment ago that as you approached the intersection, you looked up and saw the light was green for your direction of travel, correct?" he  asks.
"Yes," you say.
"And you told us that the light was green for one minute before you entered the intersection, right?"
"Yes," you respond.

"You were able to see the color of the light from at least one mile away, isn't that true?" he asks you.
"When you were one mile away, you were traveling at 30 mph, right?" he wants to know.
"Yes, that's about right," you answer.

"As you were approaching the light, you continued to maintain your speed at about 30 mph, correct?" he asks.
You want to know where he's going here. You say "Yes."
"At no time before you entered the intersection did the light turn yellow, correct?" he asks.
"That's true," you say.

"Mrs. Jones, I have in my hands a copy of the transcript of questions you were asked and answers you gave one year ago in this case. You remember doing that in your attorney's office?" he says.
"Yes," you reply.
"That was your pretrial sworn testimony in this case, right?" he asks you innocently.
"Yes," again not sure where he's going with this.

"Judge, "I'm reading from page 17, line 2...

"Mrs. Jones, what was the color of the light as you approached the intersection?"
"Well, it was green for a while but I saw it turned red as I entered the intersection."

"Did I ask you that question and did you give that answer one year ago in your attorney's office?"
"Yes," you reply quietly.
So, what have I just shown you?

I've shown you that there's an inconsistency in her testimony.
At trial she said the light remained green up until she entered the intersection.
But during her deposition, she clearly said the light was red when she entered the intersection.

That means the light would have had to change to yellow first and that she may not have seen it, leading the jury to possibly conclude that she is partially at fault for this accident.

A really smart attorney will simply point out the inconsistency and not beat it to death while this witness is still testifying.
A young novice attorney will try to pummel the witness into submission by claiming "Are you lying now or were you lying then?"
That tactic only gets the witness defensive and prompts them to explain away why her answer may be materially different now.

"As I was preparing for trial, I realized that when I gave that answer at my pretrial deposition, that's not exactly what I meant to say. What I meant to say was..."
And now she'll proceed to explain away any inconsistency.
If you attack the witness for a minor inconsistency, that attack may backfire and get the jury to sympathize with you.

Let's use as another example one from a medical malpractice case.

Let's say it's a failure to diagnose breast cancer case.
You feel your doctor failed to timely recognize your cancer and should have sent you out for referral to a breast surgeon earlier.
You're now being questioned by the defense lawyer during your pretrial deposition.

"Mrs. Jones, when you went to see my client, Dr. Gold on that first visit, did his office ask you to fill out any forms?"
"Yes, of course," you say.
"And on one of those forms it asks why you're there, right?"
"Yes," you say.

"In fact, it asks what is your primary or chief complaint, correct?" he asks.
"Yes."
"And you wrote that your chief complaint was that you had complaints of low back pain and irregular periods, correct?"
"Yes."

"That was the primary reason for why you saw Dr. Gold, correct?"
"Yes, that's true," you answer.
"Now if you had a complaint of pain in your left breast, you certainly would have let his office know that's why you were there, correct?"

You're wondering where he's going with this question.
He's setting you up for questions at trial.
"Yes," you answer.
"And if you had complaints of pain in your breast, it would have been important for you to tell Dr. Gold about those complaints on the first visit, correct?" he asks you.
"Yes, that's right," you say.

In this example, the patient claims that she told her doctor about her breast pain from the very first visit and that he failed to do anything about it until it was too late.

A year later, your case comes up for trial.
You're on the witness stand testifying.
Your lawyer finishes asking you questions, leaving you feeling pretty good.

It's now time for cross examination.

"Mrs. Jones, when you first went to Dr. Gold, you told him the reason you were there was for lower back pain and irregular periods, right?"
"Yes, and also pain in my left breast," you say.
The defense lawyer does a double take but keeps a straight face.

The jury doesn't know what just happened...yet, but they will in a moment.

"Mrs. Jones, isn't it true that when you went to see Dr. Gold for the very first time, you filled out papers in his waiting room?" he asks.
"Yes," you say.
"On one of those papers it asks you the primary or chief reason why you're there. Isn't that true?"
"Yes, of course," you say.

"At the time you filled out those papers, you were being honest in letting Dr. Gold and his office know the exact reason why you had come to his office seeking his medical help, right?" he asks innocently.
"Of course," you respond.
"And when you went into a room and saw Dr. Gold, you verbally told him why you were there, correct?" he wants to know.
"Yes, of course," you say.

"And you told Dr. Gold the same exact thing that you wrote on the paper that you filled out in his waiting room, about the primary reason you were there, right?" he asks.
"Is it your claim that when you spoke to Dr. Gold for the very first time, he asked you why you're there?" 
"Yes."
"And you told him that you had low back pain, right?"
"Yes."
"You told him you had irregular periods, right?"
"Yes."
"It's your claim that you told him you had pain in your left breast, right?" he asks.
"Yes, that's when I told him I had pain in my breast, yes," you say.

What has he done here?
He's locked you into your trial testimony.
The jury doesn't know why he did that.

The jury doesn't know why he just asked you to confirm what you did and what you said on the first visit to your doctor.
But they will in a moment...

"Mrs. Jones, I'm holding in my hand the original records that you filled out in Dr. Gold's office. Specifically the page where it asks you what your chief complaint is. Here, let me show it to you..." he says as he hands it to the court officer to hand to you. 
"This is the form that you filled out, right?"
"Yes."
"The handwritten part is all in your handwriting, correct?"
"Yes," you say.

"At the top of the page, the form asks 'What is the reason why you're here?' correct?" he asks.
"Yes, that's what it says," you answer.
"Now I want you to read along with me please..."

"You wrote 'I'm having low back pain and irregular periods'. Did I read that correctly?" he asks you quietly.
The jury is paying rapt attention here.
The lawyer pulls out a large blown-up version of this page. It's enormous at 30 x 40 inches and puts it on an easel in front of the jury so they can follow along.

"In the response to that question, did I leave anything out?" he asks knowing full well the answer.
"At the time of your first office visit with Dr. Gold, you wanted to be as truthful as possible so that the doctor could try an help solve your medical problem, right?" he asks.
"Yes, of course," you say.

"Is there anything on that line that says one of the reasons why you came to see Dr. Gold that day had anything to do with pain in your left breast?" he asks with a strong stare.
"Well no, but I told him about it when he saw and examined me," you try to explain.

"Is there anything on any of the pages you filled out in his waiting room to indicate one of the reasons you were there was because of a problem you were having with your left breast?" he asks demanding an answer.
You quickly scan through each page of the forms you filled out that morning in his office.
You know the answer.
He knows the answer.

You are forced to admit it.
"No, there's nothing in any of the forms about a complaint of a problem with my breast," you say dejectedly. "But I know I told him about it when I spoke to him," you interject quickly.
"Ah yes, let's get to that since you've brought it up," the defense lawyer says confidently.

"When Dr. Gold came in to visit with you and to talk to you and examine you, you saw he brought his laptop with him, right?" he asks.
"Yes," you say.
"And during your visit, you saw Dr. Gold make notes and type on his laptop as he spoke to you and asked you questions, right?" he asks.
"Yes."

"As far as you could tell, he wasn't answering his email and scanning his Facebook feed, right?" he asks sarcastically.
"Yes," you answer.
"From what you could see, he'd ask you some questions and then he'd return to his laptop and make some entries in your electronic medical chart, correct?" he asks.
"Yes."

"Now it's your claim that when you saw Dr. Gold on this very first visit, you made sure to tell him everything that was bothering you, correct?" he asks.
"Yes."
"It would be important for the doctor to know exactly why you were in his office that morning, especially since you were a new patient and he didn't know what problem brought you to him, correct?"
"Yes."

"It would be important for you to tell him about your back pain, right?"
"Yes."
"It would be important for you to tell him about your irregular periods, right?"
"Yes."
"These were things that were bothering you that you wanted checked out by your new doctor, correct?"
"Yes, but I also told him about my breast..." you say without warning.

"I'm getting to that Mrs. Jones. If in fact you had a problem with your breast, it would be important to tell the doctor about that as well, correct?"
"Yes, of course," you reply.

"I want you to assume that Dr. Gold has already testified here about his medical records. You were here and heard him talk about that, right?" 
"Yes."
"Good. I want you to assume that Dr. Gold has told the jury that he takes his laptop into the patient room to take notes and record patient answers when he asks questions. Ok?" he asks you.
"Ok."
"I also want you to assume that when you saw him that first visit, he brought his laptop into the room with him, ok?"
"Yes."

"In fact, you recall that he brought his laptop with him when he first came to talk to you, right?"
"Yes, I remember," you say.
"I want you to also assume that as he asked you questions, he would from time to time take a few moments to record your answers in his software program that he had on his laptop to record patient information, Ok?"
"Sure."

"I have printouts of his electronic medical records with me. Dr. Gold has told us he printed these out to show the court and the jury what he wrote that day, Ok?"
"Ok," you say.
"Now the electronic record for your first visit is recorded on this piece of paper with the exact date and time of your visit. It records the time when he first saw you and the duration of your entire visit. In fact, I want to show this paper to you, Ok?"
"Ok."

The attorney hands this paper to the court officer to hand to you.
He pulls out another enlarged copy attached to poster board and puts it prominently in front of the jury on the easel.
They want to see what's on this medical record.

They're wonding why the attorney is taking so much time talking about the doctor's medical record and what he does when he makes notes on his laptop.

"Mrs. Jones, I want you to assume that these electronic medical records have been admitted into evidence. I'm showing you Dr. Gold's notes for your very first visit. I want you to also assume that Dr. Gold has testified that one of the most important things he records in a patient record is their chief complaint, Ok?"
"Sure," you say.

"I also want you to assume that Dr. Gold told us that he relies on the patient to tell him what's wrong and why they're there because he's not a mind reader, Ok?" he asks reasonably. "I also want you to assume that Dr. Gold told us that it's important for him to record your chief complaint because when he bills your insurance company, they want to know exactly why you were there as they have very specific billing codes that will allow them to get paid for addressing those exact complaints and medical problems," he says.
"Ok," you answer.

"I'd like you to follow along with me at the top of the page, marked as Defendant's Exhibit "A" in evidence. You see at the top it says 'Chief complaint'?" he asks.
"Yes."

"Please read along with me... 'Patient presents on first visit with complaints of low back pain'. Did I read that correctly Mrs. Jones?"
"Uh, yes," you say.
"Continuing... 'Patient also complains of having irregular periods that are heavy and last for four days'. Did I read that correctly?" he asks.
"Yes."
"Is there anything else written in this space about chief complaints?" he asks, knowing the answer already.
"No, but..." you try to explain.

"Mrs. Jones, I asked you a simple question... Is there anything else written in this part of the electronic medical record?"
"Uh, no," you say, desperately turning the paper over to see if there's another part that confirms your claim that you told the doctor you complained of pain in your left breast.
"Is there anything on this entire page that suggests you had a complaint about pain in your breast?" he asks innocently.
You scan the entire page. Line by line. The jury is doing the same.

"No," you respond dejectedly. "But I'm telling you, I told him about my breast pain on that first visit!" you screech as if that will get the jury to believe you.
"Yes, we're aware of your claim Mrs. Jones, but while we're talking about that, let me show you Dr. Gold's billing record for that first visit," he says.

He then pulls out the billing record and hands a copy to the court officer to give to you.
He then pulls out the enlarged trial exhibit which is the billing record and again places it on the easel in front of the jury so they can follow along.
"Mrs. Jones, I handed you Dr. Gold's billing record for your first visit. I want you to assume that Dr. Gold has testified here that his office bills out for all patient visits. They must enter certain billing codes if they expect to get paid for seeing, evaluating and treating a particular condition. The insurance company requires meticulous coding before they pay the doctor a dime. Dr. Gold has testified that if he treated three separate conditions, he has to put down at least three separate billing codes in order to get paid for that part of your visit. If he only puts down two, yet saw you for three separate problems, at best, he'd only get paid for two of them. Now, I also want to hand you the explanations for what those codes mean," he says as he hands you another sheet to look at.

The lawyer pulls out another enlargement and puts it side by side with the billing record.

"Mrs. Jones, you see that Dr. Gold's office billed for code #7042, right?"
"Yes."
"According to Dr. Gold and the definition of code #7042, it's for evaluation of low back pain, see that?" he asks.
"Yes."

"The next code that was billed was #7055 which is for irregular periods. See that too?" he asks.
"Yes."
"Is there any other billing code on this insurance company bill for this date?" he asks, again knowing the answer.
You desperately search for some additional billing code and even turn the paper over hoping it's there. It's not.

"No," you respond.

The attorney then puts those enlargements away and starts asking you questions about a different topic.
A really smart attorney does NOT call the witness a liar at that point.
A really smart attorney does NOT ask the witness to try and explain the inconsistencies.
A really smart attorney then simply moves on to other topics.

It is only after the witness is no longer on the witness stand and can no longer answer back or explain during closing arguments that a smart lawyer will highlight to the jury the discrepancies between what this witness has said during trial and what she's said during her pretrial deposition.

This last example highlights how a smart lawyer could whittle away at a patient's claim that she made certain statements to her doctor on the first visit.

To learn about different cross examination strategies, I invite you to watch the video below...

 


Gerry Oginski
NY Medical Malpractice & Personal Injury Trial Lawyer