I had just finished attending a conference in court for one of my clients. As I usually do, I was walking around the courthouse trying to find cases that were actively on trial. I enjoy sitting in on other trials while I'm in court.

There are two key reasons for that.

One reason is that I love learning from other really smart trial lawyers. The other key reason is that at the same time, I can learn what NOT to do.

You see, there are some really fantastic trial attorneys who are great at what they do. Then there are some lawyers who are Ok at what they do. Just like any other profession or service, there are some who are less than stellar performers and of course others who are just bad at what they do.

In my opinion, I can learn more from an attorney who is less than stellar or not really good. How?

Simple. By reinforcing what NOT to do.

Getting back to my story...

I found a case on trial on the same floor where my conference was. Since the courtrooms are always open to the public, one only has to open the door and find a seat at the back of the courtroom. Then you try and figure out who the players are and who is on the witness stand.

Is this cross examination? Is it a direct examination? Who is questioning the witness? What are the jurors doing? Can you read the juror's expressions while questioning is going on? What is the judge doing?

All of these questions pop up in the first few seconds after sitting down to listen and observe.

Once in a while the court officer will come over and ask if I am a witness in the ongoing trial or if I have any business with the court. If that happens, I politely tell the court officer that I'm just observing.

I opened the door and walked into the courtroom.

It was quiet. All eyes were on the witness. The jury was looking at the witness. The attorneys were looking at the witness. The one attorney was standing toward the back of the room while questioning this witness.

In a few seconds, here's what I learned.

This was a jury trial. In progress. The witness was being cross-examined. By the plaintiff's attorney. (He's the attorney who represents the injured victim.) The judge was on the bench listening to the witness.

The plaintiff's attorney was a well-known attorney in this county and had a long history of successes there. I had heard about him before but never saw him in action and didn't know him personally.

As I watched this cross-examination, I noticed something immediately.

The plaintiff's attorney was having difficulty phrasing his questions. He couldn't ask his questions properly. His timing was off. He couldn't gain any momentum.

The medical expert was a doctor called by the defense in order to defend the lawsuit.

The medical expert was polite and cooperative. This will work in his favor. 

There are many experts who turn into vile advocates believing that since they're hired by one side, they must do everything possible to show to the jury that their position is the only possible one, at all costs. That's not what good medical experts do.

In any event, this attorney was struggling.

Then, I heard him do something that nearly knocked my socks off.


When you cross examine a witness, especially a medical expert, you ALWAYS want to ask leading questions. You ALWAYS want to tell a story with your leading questions. You merely want the witness to either agree with you, disagree with you, say "I don't know" or "I can't answer your question."

That's it.

During cross examination, I am the one in control of the questioning, not the doctor on the witness stand.

You can imagine my shock when this experienced trial attorney began to ask the doctor open-ended questions. 

"Doctor, tell us why you did that..."

"Doctor, tell us how you did that procedure..."

As a plaintiff's trial attorney, I never, ever want to give the witness control and be able to explain ANYTHING to the jury while being cross-examined. There is really only one exception to that rule. That's when you simply don't care what the answer is and whatever answer is given will have no impact on your case.

In this case, this was the defense doctor's medical expert. His answers mattered greatly.

During one question and answer, the doctor made a statement and then the plaintiff's attorney asked the dreaded question... "TELL US WHY, DOCTOR."


What do you think the doctor did then? He naturally obliged the attorney and proceeded to give a very long-winded explanation about why he thought he was right and why the plaintiff's expert was simply wrong. The jury was eating up the expert's words. In fact, they were hanging onto every word he said.

The more he explained, the more credibility he gained with the jury.

Bad, bad, bad move by this plaintiff's attorney.

He knew better. I know he knew better. But for unknown reasons, he didn't do what he should have done.

I didn't stick around for much more than that, nor did I learn of the verdict. However, I can venture a guess that the outcome was not favorable for the injured victim.

Want to learn more about this cross-examination blunder? Watch my video below.

Gerry Oginski
Connect with me
NY Medical Malpractice & Personal Injury Trial Lawyer