The defense's medical expert is on the witness stand.

He has just finished answering questions from the defense attorney in what could only be described as a pleasant exchange of questions and answers.

This medical expert was pleasant and polite.

The injured victims attorney (known as the plaintiff's attorney) stands up to cross examine this medical expert.

Almost from the get-go the defense's medical expert becomes hostile. This otherwise polite learned medical man has now turned into a fierce advocate who refuses to accept and acknowledge anything that the plaintiff's attorney is asking.

Plaintiff's attorney has no choice but to ask leading questions while cross-examining this witness.

This witness is, for all intents and purposes, a hostile witness.

You should know that cross examination does not mean that angry examination.

Despite this, the defense medical expert refuses to acknowledge even the most basic things such as...

Doctor fights with attorney over stupid stuff

“Doctor, would you agree that it is good medical practice to keep accurate records?

“What do you mean by accurate?”

Doctor, would you agree that it's important for a physician to keep thorough records?”

“What do you mean by thorough?”

Doctor, would you agree that it's important for a Doctor to keep detailed records of his interaction with a patient?”

“It's important to keep records, what you mean by detailed?”

This was a real interaction that I had with a medical expert who came in to defend a doctor in a medical malpractice case.

He would have done much better to simply agree that it is critical that a physician keep accurate, thorough and detailed notes of his interactions with the patient.

Instead, he became a fierce advocate and what should have been a nonconfrontational series of questions, turned out to be extremely confrontational and hostile.

It was plain for the jury to see that this doctor was playing games. They recognized immediately that he was playing word games and semantics.

Instead of simply acknowledging what should have been obvious, this doctor decided he was going to argue with me about every single question.

That raised many questions in the minds of the jurors about what this doctor was trying to hide.

In fact, I believe that because this doctor was so antagonistic and refused to accept the most basic of medical statements, he turned the jury against him.

In a case where this doctor had great credentials and provided very good testimony for the defense, I believe the case turned entirely on this medical expert's testimony and the games he was playing.

Why would a medical expert do this?

This defense witness might be trying to intentionally push the attorney's buttons to trigger an outburst and try and generate sympathy. On the other hand, the witness simply might be sticking to his guns and refusing to give in on any point.

There are instances where the cross examination will get very heated and uncomfortable.

Uncomfortable for the witness. Uncomfortable for the jury. Uncomfortable for anyone sitting and observing the trial. You can often feel the tension in the air.

That can be a very effective strategy for an attorney who cross-examines a hostile witness. The only relief that the witness may experience will be at the conclusion of his testimony when the attorney questioning him says “I have no further use of this witness” and then sits down.

When a defense attorney jumps up from his seat and yells “Objection Judge. He's badgering my witness!” what exactly does that mean?

It means that the attorney is asking hostile questions and is likely arguing with the witness.

Every time I hear this objection, I envision in my mind an attorney actually holding a live badger and bashing it over the witness's head.

I will share with you that I've been in practice for more than 26 years here in New York handling accident cases and medical malpractice cases and have never seen an attorney with a live badger hitting a witness with it during a trial. It simply doesn't happen.

This phrase I just mentioned, 'badgering the witness', simply indicates the perception that the attorney is creating a hostile environment for the witness, is being argumentative and being obnoxious.

When that happens, the judge must make a decision about what to do about it, if anything.

The judge might choose not to do anything and overrule the defense attorney's objection.

On the other hand, the judge might tell the attorney to move on to a different topic or subject.

The problem with a defense lawyer standing up and objecting and basically whining to the judge that the plaintiff's attorney is badgering his witness, is nothing more than whining and complaining to the judge for help.

It would appear that the defense attorney feels helpless and his witness is being attacked on the witness stand. In an attempt to divert the attorney's attention, he interrupts the attack and objects.

It always reminds me of the scenario when two siblings are fighting.

One of them screams for mom to come and help. Mom comes in and now one of the children explains why the other one was not treating him fairly. Mom has to make a snap decision about which one of her children she believes. Sometimes she will do nothing. Sometimes she will punish one of them. Sometimes she will let them both off with a warning.

I find this analogy to be very appropriate when a defense attorney says "Judge, he badgering my witness!"

Contrary to what you might see in the movies or in a drama on TV about cross examination, an attorney must always walk a fine line between aggressively going after an adversarial witness and pushing it too far. Why? Because when you pushi it too far, you might generate sympathy for the hostile witness.

One of the ways we avoid generating sympathy for a hostile witness is by asking potential jurors, during jury selection a series of questions.

I remind potential jurors that during the trial I have an obligation to cross-examine witnesses. My goal is to search for the truth. I ask these jurors whether they will hold it against me or my client if cross-examination gets a bit heated and excited.

They all understand that cross-examination is a necessary part of any trial. They all have seen movies and TV shows where cross examination is the culmination and tipping point of trial.

My goal when asking these questions is to get the jury to recognize that if I am being aggressive, or in some instances hostile with an opposing witness, that they don't hold it against me personally or my client. I want them to understand that this is simply a search for the truth. If I cannot get the witness to answer my questions directly, I have a legal obligation to continue my search for the truth.

All the jurors acknowledge and recognize the importance of asking opposing witnesses questions that can in fact get hostile.

To learn more about what it means when a defense attorney jumps up and yells “objection judge he's badgering my witness!” I invite you watch the video below...

Gerry Oginski
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NY Medical Malpractice & Personal Injury Trial Lawyer