You sued your doctor.

For medical malpractice.

For injuring you.

For causing you permanent harm.

All because he was careless during your surgery.

Just that one time.

That's now going to affect you for the rest of your life.

When I question your doctor during his pretrial testimony, I catch him in a lie.

When that happens, I don't focus on it.

Your doctor doesn't know that I know he's just lied.

I just moved on.

I didn't make it a big deal.

There's a reason for that.

I didn't want to give him a chance to explain.

I didn't want to give him a chance to change his answer.

I wanted that testimony on the record.

Recorded by a court stenographer during his pretrial testimony.

That carries the same exact weight as if he's testifying in court at trial.

I know some attorneys who would have had a field day with that lie.

They would have torn your doctor apart.

They would have used that lie to cross examine him during his pretrial deposition.

They would have attacked him with his lie.

They would have shown his testimony contradicted his office records.

They would have shown he was a liar.

You know what?

That's also a good strategy.

I've used it myself many times.

That strategy might even get your case settled early.

It exposes a weakness that makes the defense realize they've got a big credibility problem.

However, in this case, I felt that would not be the ideal strategy.

I wanted to save this explosive information for trial.

I didn't want to give away this knowledge to the doctor or his attorney.

I was setting up a trap.

A trap that I knew he'd fall into at trial.

A brutally effective trap.

The jury would see it immediately when I exposed the lie.

He wouldn't have any wiggle room.

He could try to explain all he wanted.

But the fact is that the jury would see him as a liar.

Let's get back to the title of this article.

When I catch a witness in a lie at trial, is it better for me to call him what he is?

A liar.

Or is it better to soften the attack by calling him a poor historian?

The answer is, it depends.

It depends on what type of witness he is.

If he's cocky and arrogant, I'd probably call him a liar during closing arguments.

That's strong language.

That's harsh language.

The jury might understand.

However, if it's an 85 year old grandma, it's likely not a good idea to be so harsh.

Let the jury draw their own conclusions about what to call her.

I can merely point out that her testimony is inconsistent.

Her testimony is less than truthful.

Her testimony is that of a poor historian.

I don't have to show she intentionally lied.

Only that she lied.

It's really a judgment call.

My judgment call.

It depends on the witness.

It depends on the lie.

It depends on whether this is the only contradiction or there were others.

By the way, you NEVER tell the witness that he's a liar TO HIS FACE.

Why not?

Because that will likely generate sympathy for the witness.

The jury may feel bad for him that I call him a liar to his face.

Even if he lied, there's a better way...

It's to do it during closing arguments.

When he's not on the witness stand.

When he can't answer back.

When the jury remembers the lie.

To learn what happens when jury catches you in a little white lie at trial, I invite you to watch the quick video below...


Gerry Oginski
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NY Medical Malpractice & Personal Injury Trial Lawyer