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Defense Attorney Had NO Idea How to Use a Pretrial Transcript to Cross Examine a Witness at Trial- It Was Pathetic

You can often learn more from an attorney who doesn't know what they're doing than from watching an attorney who does.

Actually, that's not true.

You can learn a great deal from an attorney who just has no clue.

Ok, here's what happened.

I took my daughter to court.

She's a college freshman.

She wanted to see a real trial.

She wanted to see what really goes on in the courtroom.

She wanted to hear witnesses testify.

She wanted to see a trial lawyer question a witness.

She was eager to see an attorney object to an improper question.

She wanted to see what jurors actually do during trial.

She wanted to see what the trial Judge did and how he reacted.

So, we went to court.

In Mineola.

In Nassau County.

Here in New York.

The trial level court in New York is called the "Supreme Court of the State of New York."

We were going to try and sit in on some civil trials.

Civil as opposed to criminal.

Civil.

Meaning that in most of these cases, a person was injured because of someone else's carelessness.

They brought a lawsuit seeking money as a form of compensation for their injuries.

These cases involve accidents.

Car accidents.

Dog bites.

Medical malpractice and improper medical care.

Wrongful death.

Construction accidents.

There's a huge difference between watching a civil trial and a criminal trial.

It's NOT like in the movies.

It's NOT like Law & Order on TV.

Cross examination does not happen in 30 seconds with three questions.

Closing arguments do not take one minute.

In a civil trial there are six members of the community who must decide if you are more likely right than wrong that what you are claiming is true.

In a criminal trial, the prosecutor must show beyond a reasonable doubt that the person who is accused of the crime is guilty.

In a civil trial, an injured victim seeks money as a form of compensation.

In a criminal trial, if the defendant is found guilty, he will go to jail.

The minutiae of getting documents into evidence is an important foundation to building your case.

That's not exactly prime time drama in the movies.

After going through security, we made our way up to the third floor.

Lots of courtrooms on the third floor.

Not many trials happening on that floor.

Only two.

We walked past the first courtroom, saw there was an ongoing trial and stepped inside.

We were the only spectators.

As soon as we sat down, the court clerk got up from her seat and approached us.

She asked if we were witnesses in this trial.

We said "No. Just observing."

Satisfied, she returned back to her desk to her clerk activities.

This was a medical malpractice trial.

A seasoned defense attorney was questioning a cardiac expert.

A woman.

At first she sounded very articulate.

The jury was paying rapt attention to every word she said.

They appeared eager to try and understand her answers.

She was trying to explain why the doctor who was being sued did everything right.

She wasn't doing a great job, in my opinion.

She was speaking in medical jargon.

Using big medical words.

She had difficulty making it all sound intelligible to someone who was not a medical expert.

I got the sense that her attorney realized this.

That prompted him to ask a number of follow up questions seeking clarification.

What he really wanted to say to her was "Tell us in simple, plain English what this complex medical sentence means!"

She had difficulty doing that.

Despite this challenge, I nudged my daughter to pay attention to the jury.

To watch them.

Watch their expressions.

Watch their body language.

Watch what they do.

What the jury thinks and feels is the key.

These jurors were paying very close attention to everything this medical expert said.

I understand that reading jurors is often difficult, but for an outsider observing the trial proceedings, it's fascinating.

My daughter thought it was dry.

Somewhat boring.

There were no sparks.

There were no fireworks.

There was little drama in what she observed for ten minutes in the courtroom.

It was interesting, but not fascinating.

Ok, we moved on to the next courtroom.

It was a smaller courtroom than the one we were just in.

This was a dog bite case.

The injured woman was on the witness stand.

She was being cross examined by the defense lawyer.

He was tall.

He had grey hair.

He wore a grey suit with white shirt and an unremarkable tie.

He stood by the podium toward the back of the room.

He used a looseleaf notebook that he kept referring to.

He had a habit of using this woman's name as a preface to every question.

"Now Mrs. Jones, tell me whether..."

"So, Mrs. Jones, I want to know..."

"Mrs. Jones, are you saying..."

It was annoying.

He didn't know how to vary his questions.

He didn't know how to use a different format for his questions.

After fifteen minutes of watching and listening to him, I got the clear sense that he didn't really know how to conduct cross examination either. At least not well.

Let me tell you why...

Before entering court that morning, I explained to my daughter the process that an injured victim goes through when bringing a lawsuit.

Specifically an injured victim has to appear for questioning by the defense lawyer.

This question and answer session is legally known as a deposition.

That's pretrial testimony.

It's given in your attorney's office.

In his conference room.

Your attorney is there.

The defense lawyer is there.

There's a court reporter there.

The court reporter, also known as a stenographer, is there to record all of the questions you're asked and all of the answers you give.

Those questions and answers are transcribed and then put into a booklet.

That booklet is called a transcript.

Those pretrial answers are your sworn testimony.

It carries the same weight as if you are testifying at trial.

That pretrial testimony can also be used against you at trial.

This is what I was explaining to my daughter as we approached the court house that morning.

She asked "How can you use the pretrial transcript against a witness at trial?"

I said “here is how it's done.”

At trial I ask the witness a series of questions.

Questions I've already asked her a year earlier during her pretrial testimony.

I know the answers she is going to give.

I know it because that's what I asked her a year ago.

If she needed to change or correct her answers, she had plenty of time to read the transcript, make changes and correct her answer.

If she did not make any changes, then I know she has to answer the same exact thing when I ask her the same exact questions at trial.

During cross examination, I will ask her a series of questions that were identical to the ones that I asked during her pretrial question and answer deposition.

If she gives me a different answer than the ones she gave me during her pretrial testimony, then I will ask her if she is sure about her answer.

My goal is to lock her into her trial testimony.

I want to make sure she can't wiggle out of her answers at trial.

I will give her an opportunity to correct or change her answer.

My next goal is to lock in whatever she says.

Remember, this is the very first time the jury is learning the answers to my questions.

They were not present during her pretrial deposition.

They don't know what information I obtained from her a year earlier in her pretrial testimony.

But they will if she gives me different answers now compared to what she gave me a year earlier.

If she now sticks to a different answer, I can use her pretrial testimony to show the jury that she has contradicted herself.

“Dr. Jones, when my client first came into your office, she told you she had a breast lump, correct?”

“Yes.”

“She then told you that she had significant pain in her breast, correct?”

“Yes.”

“In addition to the breast lump and breast pain, she also complained of having headaches, correct?”

“Incorrect.”

“In addition to her complaints of a breast lump and breast pain, she also complained of vaginal bleeding for two weeks, correct?”

“Incorrect. There's nothing in my notes to reflect she made any other complaints other than the breast lump and breast pain.”

"Doctor, one year ago I had an opportunity to question you in your attorney's office during your pretrial deposition, correct?”

“Yes.”

“At that time, your attorney was present when I questioned you in his conference room, correct?”

“Correct.”

“A court stenographer was also present in the room when I question you during your pretrial question and answer session, correct?”

“Yes."

“You know the court reporter recorded all of my questions and all of your answers, correct?”

“Yes.”

“I want to direct your attention to page 17, line 6: 

Question: In addition to my client complaining of a breast lump and breast pain, what else did she complain of?
Answer: She complained of vaginal bleeding for two weeks and having headaches.”
Doctor, did I ask that question and did you give that answer?”

“Yes, I guess I did.”

So, what have I done here?

I have now confronted the witness with her statement that she made to me a year earlier.

She swore to tell the truth at that time.

Her answer was recorded accurately.

No changes were made to that testimony in over a year.

Now at trial, the answer to that question is significantly different.

That's a contradiction.

That's a difference that the jury needs to know about.

The jury needs to see that this witness is NOT credible.

That's how you use a pretrial transcript to contradict a witness who is being questioned.

You find the same question and a different answer and then confront the witness with her prior testimony.

Here's what this apparently experienced attorney did during this dog bite trial that my daughter and I were watching...

He first fumbled around for almost two minutes trying to find the correct page he was looking for.

He then began reading almost 2 pages worth of useless questions and answers.

None of what he was reading contradicted anything the witness just said.

None of it!

You should know that it is possible for an attorney to read portions of pretrial testimony to the jury.

However, it is not appropriate to do that with the witness sitting on the witness chair waiting to be questioned.

While the attorney was reading useless questions and answers, the judge stopped him and asked what he was doing.

The attorney claimed he was showing the jury a contradiction.

The judge asked incredulously, "Where is the contradiction?"

He fumbled for an answer.

There was no contradiction in any of the two pages of pretrial testimony he read.

It was clear to everyone in the courtroom that the judge was incredibly frustrated with this attorney's attempt to use pretrial transcript to cross-examine this witness.

The jury, following the judge's cues, also had looks of disbelief while listening to this attorney.

The attorney then tried to find some answer that contradicted her current trial testimony.

He continued reading another page that also had no bearing on anything the witness said.

Throughout this entire interaction, the judge was shaking his head wondering how this lawyer could do this.

Even my daughter expressed disbelief to me.

She said “I don't understand. Nothing he read to the jury from her pretrial transcript contradicted anything she said on the witness stand. Why did he do that?”

I told her he did that because he didn't know what he was doing.

A pretrial transcript is a great tool to use to confront a witness who gives different testimony than what she gave earlier in the lawsuit.

If there's a clear contradiction, you can  whittle away the witness's credibility.

That's the goal.

Since a witness's credibility is everything in a lawsuit, if you destroy their credibility, it may help you win your case.

After walking out of the courtroom, my daughter turned to me and said “That lawyer didn't know what he was doing, did he?”

I replied “He seemed like he had a lot of experience but he clearly had no idea how to conduct an effective cross-examination using a pretrial transcript."

We then walked into a courtroom involving a criminal case.

An assistant district attorney was questioning a Nassau County Detective.

The defense attorney was sitting next to his client.

The person charged with a crime is known as a defendant.

The criminal defendant was sitting next to his defense lawyer.

The defendant clearly was not paying attention to the testimony nor did he bother to look up at the jury.

Two police officers sat behind the defendant as testimony proceeded.

The prosecutor had many years of experience.

That was obvious.

She was thorough.

She was methodical.

She wanted to the jury to know exactly what this detective did step by step.

She left nothing out.

Since the members of the jury were not present when the defendant was arrested, the prosecutor needed to teach them exactly what was done and why.

She needed them to 'see' what the detective saw and did that night.

She asked short questions.

Questions that called for simple answers.

Not long winded answers.

“You read him his Miranda rights?”

“Yes.”

“What are Miranda rights?”

The detective then explained what they are and summarized them.

"Did he agree to talk to you after you read him his Miranda warnings?"

"Yes."

“He agreed to talk to us without an attorney.”

“Did the defendant sign the Miranda card indicating he read it and understood it?”

“Yes.”

“Did you sign it?"

"Yes."

"Did your partner sign it as well?”

“Yes.”

My daughter and I quickly learned that the criminal defendant on trial was one of four people who participated in a home robbery at knife point and gunpoint.

After getting the detective to explain what Miranda warnings were she still continued asking questions about the Miranda warnings.

She left no stone unturned.

She didn't want to give the defense an opening to attack the detective's memory or his credibility.

Here's what we learned about this Miranda warning.

This is given to every person who is arrested.

It tells them they have the right to an attorney.

They have the right to remain silent.

They are told that anything they say can and will be used against them in a court of law.

If they can't afford an attorney, the court will provide one.

The prosecutor wanted to make sure that this criminal defendant was aware of his rights.

There's no question he was.

She also wanted to make sure that after reading the warnings and being told about the warnings, he still agreed to talk to the detectives about what just happened.

He also agreed to talk to the detectives without an attorney.

The detective confirmed that he was verbally aware of these warnings.

He also confirmed that he read the warnings on a card.

He also told the jury that the criminal defendant signed the Miranda card indicating he had read and understood what it said.

These methodical questions were critical to lock the defense into a box.

Now there was no way they'd be able to argue that he wasn't made aware of his right to remain silent.

Nor could he say he didn't know he could have an attorney.

Nor could he argue that anything he said during his interrogation would be used against him in court.

The prosecutor did a great job establishing this information, one piece at a time.

Once she got all this testimony, then it was simply a brief formality to have this Miranda card introduced into evidence.

The defense lawyer had no objection to this card being introduced into evidence.

This happened in the span of just a few minutes.

Now the prosecutor had to pivot the jury's attention to the sworn statement the criminal defendant gave during his interrogation.

You should know that a defense lawyer often will argue that a confession given shortly after an arrest was obtained through force or coersion. 

If the facts support such a claim it could destroy the prosecutor's charges that this person is guilty of the crime.

She needed to show the jury that this sworn statement by the defendant was given voluntarily.

She needed to show the jury that the defendant had an opportunity to make any changes to his statement and did not make any.

She also needed to show the jury that this criminal defendant read his statement and agreed with everything he said.

Here's how she did it...

"When you were questioning the defendant at the station house did you ask him questions?"
"Yes."
"Did he tell you what happened?"
"Yes, he did."
"What did he tell you?"

The detective then proceeded to turn to the jury and explained in detail the information he obtained from this criminal defendant.

He confessed to having participated in this crime.

He confessed to committing this crime with three other people.

He confessed they went to this home to rob the family.

He confessed to getting in the getaway car with the others.

He admitted to being chased by a police car and crashing the car they were in.

He admitted to running away with the others.

"Did you record this information anywhere?"
"Yes. As he was telling me this information, I was writing exactly what he said on the witness statement form," said the detective.

"How many pages was this statement?"
"Five or six."
"You wrote it in your handwriting?"
"Yes."

"After obtaining all of the information from the criminal defendant, what did you then do?"
"I went back to page one and read the entire thing to the defendant. I wanted him to hear his entire statement."

"What did you do next?"
"I asked him if he wanted to make any changes."
"Did he?"
"He said he didn't have any changes."

"What did you do then with regard to his statement?"
"I had him read it."
"And then?"
"Then I had him sign each page of the statement confirming he read it."

"Did you give him an opportunity to make changes after he read it?"
"Yes."
"Did he make any changes then?"
"He said he had no changes."

"Did you sign the statement?"
"Yes I did."
"Did your partner sign the statement?"
"Yes he did."

"Is this the original statment that is in your handwriting?"
"Yes."
"Is this where the defendant signed on each page?"
"Yes."

"In your presence?"
"Yes."
"Is this where your partner signed?"
"Yes."

"Did you witness your partner sign this?"
"Yes."

"Your honor, I offer this sworn statement into evidence."

"Any objection defense attorney?" the Judge asked.
After quickly reading the original statement and comparing it to his copy, the defense lawyer said "No objection Judge."

15 minutes later, my daughter and I left the courtroom.

As I turned to her, I asked her whether she believed the defendant on trial was innocent or guilty just based upon the testimony she heard from the detective concerning the Miranda warnings and the signed sworn statement he gave to police when he was caught.

She said “He's totally guilty.”

I agreed.

From what little testimony we heard, there was no way the defense could dispute the detective's testimony.

There appeared no way for the defense to whittle away at the police officer's testimony concerning the sworn statement made by the criminal defendant that evening implicating himself and his co-conspirators.

The prosecutor did a remarkable job of methodically building her case one question and one answer at a time.

I explained to my daughter that the best trial attorneys build their cases as if they are building a foundation using bricks and mortar.

You build it one brick at a time making sure that your foundation is solid.

This way, when you reach the finish line and have now finished your trial, you come back to the jury and ask them for a verdict in your favor because all the evidence supports your claim.

I have one piece of advice for the defense lawyer in the dog bite case...

Learn how to cross examine a witness.

Take a few cross examination seminars and learn from really good experienced trial lawyers.

He should also go across the street and watch some experienced prosecutors try their criminal cases one piece of evidence at a time.

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

 

 


Gerry Oginski
NY Medical Malpractice & Personal Injury Trial Lawyer