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You Forgot the Answer During Your Cross Examination! Can the Defense Attorney Hand You a Document to Refresh Your Memory in Your Medical Malpractice Trial?

Cross Examination Strategies

The answer is yes.
Ok, that's it. 
Article over.

Not exactly.

Let's start at the beginning...

You sued your doctor.
For medical malpractice.
You claim he was careless.

You claim he was negligent.
You claim his carelessness caused you injury.
You also claim that your injury is permanent.

Your doctor says "Nonsense. I did nothing wrong!"
Then he says "If I did something wrong, it didn't cause your injury."
Then, he says "If I did something wrong and it did cause you harm, your injuries are not as bad as you claim them to be."

Then, he says "I'm never going to settle this case. I will never negotiate. I'll see you at trial!"
Your case finally comes up for trial two to three years later.
That's how long it takes for a malpractice case in New York to get to trial.

Jury selection has finished and your trial is starting.
You are the second witness to testify.
Your lawyer asks you lots of open-ended questions about what happened to you.

He asks you to explain everything.
Who? What? Where? When? How? Why?
You have no problem answering his questions.

You feel like you're on top of the world.
Your lawyer prepared you for the types of questions he'd ask you and you answered them beautifully.
After a few hours, your lawyer is done with his questions.

The jury now has a very good idea of what happened.
They now know exactly how your injuries have affected you on a daily basis.
The jury now knows what activities you can no longer do.

They've learned how you can no longer work.
They get it.
They heard it all.

Your lawyer sits down and says "I have no further questions. Your witness," he turns and lets the defense lawyer know it's his turn to question the witness.

It's time for cross-examination.
That's usually a search for the truth.
The attorney who conducts cross examination has different strategies for different witnesses.

He can be nice.
He can be obnoxious.
He can be both.

He can be relentless.
He can be sweet as pie.
He can trick you.

The defense lawyer starts asking you about complaints you made to your doctor, the one you sued.
He wants to make sure the jury knows what you complained of during various visits to his client.
"Mrs. Jones, on your first visit to Dr. Gold, did you tell him you had pain in your breast?" he asks you.

"I don't recall," you answer.
"On the second visit to Dr. Gold, did you tell him you had pain in your breast?" he asks innocently.
"I don't recall," you say.

"On the third visit to Dr. Gold, did you tell him you had discharge from your breast?"
"I'm not sure what visit I made that complaint," you say.

He continues asking you questions about each and every visit.
It sounds as if you have no memory of any complaints you made on these varied visits.
That's a big contrast to you remembering everything when your own lawyer asked you questions.

The defense attorney is trying to make a point.
He's trying to show you have a selective memory.
He's trying to show that the claims you're making are less than accurate.

In order to get you to agree with some of the things you complained of, he has a neat little strategy he can use when you just can't remember exactly what you did or said on a particular visit. 
Let me show you what I mean...

"Mrs. Jones, I'm showing you Dr. Gold's original office records that are marked as Plaintiff's exhibit #2. I want you to look at the first office note of January 1. Do you see the section at the top that says 'Patient complaints'?" he asks you.
"Yes," you say.
"Good. Now, do you see what's written there?" he asks.

"Yes," you answer.
"Great. Let's read along together. It says 'Patient complains of having pain in her right breast for the past three months.' Did I read that correctly?" he asks.
"Yes," you answer and wonder what's coming next.

"Does that document that I just showed you refresh your memory of what you complained of on that very first visit to Dr. Gold?" the defense lawyer asks you.
Either it does or it doesn't.
If it does you'd say "Yes, it does. Now I remember I said that."

If it doesn't, you'd say "No, I'm sorry but it doesn't."

The attorney can keep doing this for every visit that you claimed you didn't remember what complaints you made.
This little strategy can be very effective and is designed to simply refresh your memory with documents that are in evidence.

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


Gerry Oginski
NY Medical Malpractice & Personal Injury Trial Lawyer