This trial tactic falls under the sneaky trial tactics category.

Let's say it's a medical malpractice trial.

Here in New York.

The patient's attorney is cross-examining the defense's medical expert.

It's a hard-fought trial.

The defense disagrees with everything.

The defense argues that they are not responsible for the patient's terrible injuries.

The defense claims they did nothing wrong.

The defense argues that nothing they did or did not do contributed to the patient's injuries.

To make matters even worse, the defense argues that the patient's injuries really are not as bad as they claim them to be.

You know that cross examination is a search for the truth.

It is also the most dramatic part of a trial.

We have been conditioned to believe, being brought up on movies and television, that a skillful attorney can destroy an opposing witness on cross-examination.

Every trial lawyer likes to believe this fantasy.

The reality is, it's just that... A fantasy.

Maybe once or twice in an attorney's career will he get a witness to break down and admit to everything in his favor during cross-examination.

Unlike in the movies or television, what goes on in a real courtroom, in a real case is not what happens on TV or in the movies.

Witnesses typically do not break down and confess.

However, there are some trial strategies that are better suited to show and highlight the jury that the witnesses lying.

The witness might be less than truthful.

The witness might be less than credible.

I've seen this tactic used, mostly by elderly attorneys and young, novice and experienced attorneys.

You can get away with it once.

You can't get away with it more than once.

Here's what happens...

During cross examination, when the attorney gets a favorable response, rather than simply moving on to the next question, he decides to milk the last answer for all that it's worth.

He might pretend not to have heard the witness' answer.

In that case, he asks the witness to repeat the answer, claiming he did not hear it.

An alternative is to ask the judge to have the court reporter read back the witness' last answer, claiming that he did not fully hear what the witness just said.

The first time the attorney asks the witness to repeat his answer, it's acceptable.

Imagine if the attorney asks two or three or four times in a row.

The same thing applies if he asks the judge to have the court stenographer read back the answer multiple times.

By that point, everyone in the courtroom knows that the attorney is trying to milk the answer as much as possible.

To learn even more, I invite you to watch the quick video below...

Gerry Oginski
Connect with me
NY Medical Malpractice & Personal Injury Trial Lawyer