A woman brought a lawsuit against her doctor.
For medical malpractice.
She claimed he was careless.

She claimed he was negligent.
She also claimed his wrongdoing caused her injury.
Then, she claimed that her injury was permanent.

Her doctor scoffed at the idea he did anything wrong.

He said "I don't understand...Why are you suing me? I did nothing wrong!"
He then said "Even if I did something wrong, it didn't cause you any harm."
He then argued that "Even if I did sometihng improper and it caused you injury, you also contributed to your own injury."

Then, to make matters even worse, he argued "IF I did something wrong AND it caused you harm, YOUR injuries really are not that bad!"
He refused to negotiate.
He refused to pay a penny.

He ordered his lawyer to go all the way to trial and take a verdict because there was no way he was going to negotiate.
"I did nothing wrong," he kept saying to his attorney.
His lawyer said "Fine. If that's what you want to do, we'll do that."

Two years later...

The case finally came to trial.
In front of six members of the community.
Six strangers who said they could decide whether the injured patient was more likely right than wrong.

This was a trial by jury.
In New York, we have only six jurors who get to decide if your doctor was careless and if his wrongdoing caused you injury.
Remember, this is a civil trial, not criminal.

The doctor is NOT going to lose his license if he loses this case.
Nobody is going to jail here.
This is a claim for money...to obtain full and fair compensation for all the harms, damages and losses the patient incurred because of the doctors' improper treatment.

The patient and her attorney took a week to put on all their testimony and evidence.
Then it was time for the doctors' attorney to put on his case.
To call whatever witnesses he felt was appropriate to support their claim that he did nothing wrong.

Their first and only witness was their medical expert.
A board certified medical expert.
A highly qualified medical expert.

A doctor who had written a textbook.
A doctor who lectured to other physicians.
A doctor who taught doctor's in training known as residents.

A doctor who did these exact surgical procedures.
The defense lawyer spent a few hours asking his own expert questions.
Lots of them.

Open-ended questions.
Questions that allowed the doctor to explain every answer.
Questions that permitted the doctor to teach the jury.

Every answer required a detailed explanation.
The doctor got off the witness stand multiple times to explain the anatomy to the jury.
To show them, using anatomical drawings what was done in this case.

This type of questioning of a medical expert is known as 'direct examination'.
That's where the attorney who called the expert to testify, gets to ask lots of open-ended questions.
"Doctor please tell us more..."

"Doctor, explain to us what happened here..."
"Tell us why..."
This is all appropriate when asking your own witness to explain to the jury what happened and why their version of the events is what really happened.

Finally, the doctors' attorney was done with his questions.
"Your honor, I have no more questions," he said. Turning to the patient's attorney he said "The witness is all yours."
The patient's lawyer jumped up  from his seat.

He couldn't wait to start ripping into this expert.
He couldn't wait to aggressively show the jury that this expert was being less than truthful.
He coudn't wait to show the jury that his knowledge of medicine was superior to this 'so-called' medical expert.

The very first question wasn't polite.
The first question was demanding.
It was obnoxious.

His tone was angry.
He came out of the starting gate yelling at the doctor.
Almost screaming.

The jury didn't understand why he was angry.
The jury didn't understand why this nice doctor deserved to be yelled at.
They were taken aback.

Even the doctor on the witness stand didn't understand why the patient's attorney was being so aggressive.
She hadn't said anything to attack him or his client personally.
The patient's attorney was sarcastic.

He had an edge and it didn't bode well for him or his client.

At the very beginning of his cross-examination he gave the doctor instructions.
But they were bizarre instructions.
Useless instructions.

"Doctor, keep your voice up," was one of them.
"Wait till I finish my question before you answer," was the second one.
That was it.

Those were the important instructions he felt necessary to impart to this medical expert.
I'll tell you what instructions he failed to lay out.
Instructions that let the jury know YOU'RE in control here.

This ISN'T the operating room where the surgeon is in total control.
This ISN'T some lecture hall where doctors-in-training are being taught what good medical practice requires them to do.
This ISN'T some conference where doctors pat each other on the back and network with eachother.

This is the courtroom.
A place where justice is served.
A place where six strangers from the community get to decide if the injured patient has proven that she is slightly more likely right than wrong.

During cross examination, the lawyer asking the questions SHOULD BE in total control.
This is the highlight of any trial.
Not just a medical malpractice trial.

The lawyer doing cross examination is running the show.
He's telling a story and wants the witness simply to agree or disagree with his statements.
Make no mistake, IT IS A SHOW.

The focus should be on the ATTORNEY during cross examination and not so much on the witness.
The attorney should have a commanding appearance and demeanor.
The operative word here is SHOULD.

The reality is that there are some attorneys who are amazing at cross examination.
There are some attorneys who are just good at cross examination.
Then there are some lawyers who are less than good.

Then there are others who are just awful.
If you're watching those lawyers from the back of the courtroom, you'd cringe when you hear and see what they're doing wrong.
This lawyer was one of those.

I don't say that to point out the obvious.
I don't say that to make fun of anyone.
Nor do I say that to highlight the deficiencies of any one attorney.

I say that because it was obvious to everyone in the courtroom.

Remember a few moments ago when I told you the patient's attorney gave instructions to the medical expert?
Remember when I shared with you those two wasted instructions that did nothing to further his case?
Where he wasted precious time accomplishing nothing by telling the doctor to speak up and wait till he finishes his question before she answered?

Well, I forgot to tell you that he left out a very important instruction.
One that would go on to destroy his entire cross examination.
The sad fact was that he didn't even know it.

What was that instruction you ask?
Glad you asked.
I'm happy to share with you what the attorney SHOULD HAVE told the doctor when he was giving her instructions.

He should have told her this series of questions...

"Doctor, I 'm going to be asking you a series of questions today that call only for a yes or no answer.
If you can answer my question yes or no, do you promise to answer only yes or no?"

The doctor, being reasonble, is expected to say yes.

"Doctor, if for some reason you are unable to answer my question yes or no, do you promise to tell me that you cannot answer my question yes or no and stop there without giving me any explanation about why you cannot answer the question yes or no?"

Again, the doctor, being reasonble, is expected to say yes.

"Doctor, if by some chance you don't know the answer, do you promise to tell me you do not know the answer without providing any explanation about why you don't know the answer?"

Again, the doctor, is expected to say yes.

Why are these apparently simple instructions used by the best trial attorneys when cross examining a medical expert?
To keep the doctor on a very short leash.

Not literally.
To make sure they don't give runaway answers.

To make sure the doctor ONLY answers the question you've asked and nothing more.
To let the jury and the judge know who's in control.
To let the judge and jury know you won't tolerate any nonsense answers.

BUT...in order to make this work, the attorney, during cross examination, MUST ONLY use short, leading questions.
That is the ONLY way this will work.
Let me show you what I mean.

"Doctor, isn't it true you saw Mrs. Jones on January 1?"
"On that first visit she complained of a lump in her breast, correct?"
"After taking her history, you then did a breast exam, right?"
"Then, you examined the rest of her body, from her head to her toes, correct?"

Each of these questions ask about one single fact.
They are short questions.
Calling ONLY for yes or no.

Not one of them calls for an explanation.
They are all leading questions.
A question that tells a story.

One fact at a time.
There is no room for error here.
If the cross-examining attorney slips up and says "But doctor, tell us WHY you feel that way," he has just ceded total control to the expert.

If the attorney were to mistakenly ask such a question, the doctor will now go on a long-winded answer doing her best to explain, in detail, why the lawyer and his client is wrong. Totally wrong.
And there's very little that the cross examining lawyer can do to stop that runaway train.

"Doctor, you just told us that you disagreed with Dr. Jones about how to do this procedure. Tell us why you have that opinion," he asks naively.

As someone watching the trial you should hear a loud BOOM go off in your head.
This is HUGE.

This is a BIG MISTAKE.
It's a no-no.
You don't do it.

The moment you ask a doctor on cross examination to explain anything, he will jump at the chance to show why you're a sniveling little attorney who knows nothing about the medicine and knows nothing about controlling an opposing witness. 

You might try to get the judge to stop the witness from answering your question when you realize your mistake.
You might try to interrupt the doctor to ask another question before she has a chance to answer your open-ended question.
None of those alternatives are good.

The doctors' attorney will jump up and say "Judge, he asked to explain, now let her explain. He can't cut her off in the middle of answering his question!"
"Very true," the judge says. Turning to the doctor on the witness stand he says "Continue please doctor..."

Well, let's get back to what happened here.
Not only did this lawyer fail to instruct this medical expert to only answer yes or no, he asked open-ended questions.
This was unbelievable.

That meant with almost every answer, this board-certified medical expert gave explanations.
Explanations that helped the jury understand.
Explanations that made sense.

The patient's attorney didn't even realize that he wasn't in control.
He didn't even realize he had ceded control to the expert.
He didn't even realize that the doctor was in command during this cross examination.

That didn't bode well for this attorney.
Or his client.

Because with every explanation, the doctor bonded with the six strangers sitting in the jury box.
With every answer, she connected with the jury by giving polite answers that explained her conclusions.
By making sense.

By not being restricted to only answering yes or no.
Good for her and bad for the patient's attorney.
The moment the lawyer asked the expert to explain, you could see how excited the doctor was for the chance to again explain.

The patient's attorney didn't even know what he was doing was less than ideal.
He didn't even realize he shouldn't be asking open-ended questions.
During cross examination you NEVER ask an opposing medical expert "WHY" unless you simply don't care about the answer.

We call that a throwaway question.
If the answer just doesn't matter and you want to create some dramatic flair, then you could ask it.
Otherwise, that dreaded question should never be on the lips of any attorney who gets up to cross examine an opposing witness.

To learn more cross examination strategies, I invite you to watch the video series below...


Gerry Oginski
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NY Medical Malpractice & Personal Injury Trial Lawyer