Go to navigation Go to content

YOU HAVE IMMENSE POWER when Saying "I DON'T KNOW!" Especially when you're being cross examined by an attorney who is trying to destroy your credibility.

"Mrs. Jones, isn't it true that Dr. Gold gave you this paper to sign?"
"I DON'T KNOW," you answer truthfully.

"Didn't you eat a sandwich before getting anesthesia that morning?"
"I DON'T KNOW," you reply.

"Didn't my client tell you to take this medication every day for ten days?"
"I DON'T KNOW," you explain.

"How fast were you going at the time of impact?"
"I DON'T KNOW," you say.

Can answering "I DON'T KNOW" help you during your lawsuit?

The quick answer is maybe yes, but then again, maybe no.

Let me explain...

You were injured.

Badly.

By someone's carelessness.

Let's say your doctor caused you significant injury.

He didn't mean to do it.

He didn't do it intentionally.

But he was careless.

His carelessness caused your injury.

You are now permanently disabled.

You decide to bring a lawsuit against your doctor.

A board certified medical expert has confirmed that you have a valid case.

He confirms that your doctor violated the basic standards of medical care.

He confirms that his wrongdoing caused your injury.

He also confirms your injuries are permanent.

Your doctor, the one whom you trusted, says that your claims are nonsense.

He claims he did nothing wrong.

He claims that even if he did something wrong, it didn't cause your injury.

He argues that if he did something wrong and caused you some injury, your injuries are not as bad as you claim.

Those are the typical defenses we see in medical malpractice cases here in New York.

Since the defense has taken such a strong position, you can expect that they will not negotiate.

Since they believe they did nothing wrong, you can expect they will not attempt to settle your case.

That means you can expect your lawsuit to go the distance.

That means you can expect to go to trial two to three years down the road.

During the course of your lawsuit, the defense attorney has an opportunity to question you in a question and answer session known legally as a deposition.

This is also known as examination before trial.

The answers that you give in response to the attorney's questions are your pretrial testimony.

You should know that there is no judge present during this question and answer session.

There is no jury present.

In fact, this question and answer process takes place in your attorney's office.

In his conference room.

Your attorney is there.

The defense attorney is there.

A court reporter is also present to record all of the questions you are asked and all of your answers.

Those questions and answers are then transcribed into a booklet called a transcript.

That is your pretrial testimony.

You should know that the answers you give can and will be used against you at trial.

Let me show you how this works during your deposition...

You are now being questioned by the defense lawyer.

He's sitting across from you in your lawyer's conference room.

“Mrs. Jones, isn't it true that you had a conversation with Dr. Gold before deciding to have this surgery?”
“Yes, I did.”

“Isn't it true during that conversation Dr. Gold explained to you the risks associated with this surgery?”
“Yes he did. He told me there could be bleeding. He told me I could suffer infection. He told me there's a risk of injuring other adjacent organs.”

“Isn't it true Dr. Gold told you the benefits of having the surgery?”
“Yes he did.”

“Isn't it true that Dr. Gold also explained various alternatives to you having a surgical procedure?”
“Yes, he did. He told me I could have a different surgical procedure. He also told me I could do nothing. Finally, he told me I could take medicine to see if that would work.”

Comment:

One of the claims you brought in your case involves a claim for lack of informed consent.

It basically means that you believe your doctor failed to properly tell you about the risks, benefits and alternatives to this surgery.

Because of his failure, you were at a disadvantage in being able to make an educated decision about whether to have this surgery.

In this example, Mrs. Jones appears to have squandered away this claim.

Her answers reveal that her doctor clearly told her about the risks, benefits and alternatives to surgery.

If the defense attorney were smart, he would then ask the judge to get that part of her claim dismissed.

This way, when they get to trial, the jury can focus only on the issues that are in dispute.

Let's get back to this example.

One year later, your case comes up for trial.

You are on the witness stand.

Your attorney has spent two hours asking you open-ended questions having you explain to the jury what happened.

During your testimony you explain that Dr. Gold did not tell you about the risks, benefits and alternatives to your surgical procedure.

The defense lawyer then gets up to cross examine you.

He's armed.

He's ready for you.

He asks whether you had a conversation with Dr. Gold before agreeing to have the surgery.

You respond “I don't know.”

He asks whether Dr. Gold ever discussed the risks of the surgery with you.

You respond “I don't know.”

He then asks whether Dr. Gold ever discussed with you the benefits to going forward with the surgery.

You admit that he did discuss with you the benefits.

By admitting this, you are also inherently admitting that Dr. Gold had a conversation with you about the surgery, before agreeing to it.

The defense lawyer then asks you whether Dr. Gold also spoke to you about the alternatives including doing nothing at all.

You respond “I don't know.”

If you were a juror listening to those questions and answers, without knowing anything that took place during your pretrial testimony a year earlier, what would you think?

Would you think that the witness was being truthful?

Would you think that the witnesses was simply forgetful?

Would you think that the witness was trying to hide something intentionally?

Remember, the jury does not know anything that transpired during your pretrial question and answer session...yet.

I guarantee you however that in the next few moments they are going to learn about your pretrial testimony.

They are going to learn very quickly about the inconsistencies and contradictions between your pretrial testimony and the testimony that you now gave at trial.

Let me show you how this works...

“Mrs. Jones, isn't it true that one year ago I asked you questions about the facts of this case in your attorney's office?”
“Yes.”

“Isn't it true that your attorney was present during my questioning?”
“Yes.”

“Isn't it true that there was a court reporter present to record all of my questions and all of your answers?”
“Yes.”

“Isn't it true that after your question and answer session that day, the court reporter sent you a transcript of all the questions I asked and all the answers you gave?”
“Yes.”

“Isn't it also true that you were given an opportunity to read that transcript to make sure it was factually accurate?”
“Yes.”

“Isn't it true that after reading that transcript, you did not make any changes at all?”
“Yes.”

What have I done here?

I've laid the groundwork to let the jury know that before we ever got to trial Mrs. Jones answered questions put to her by the defense attorney.

I educated them on the pretrial deposition process.

I also let them know that she was given an opportunity to read those questions and answers and had a chance to make changes if she felt they were necessary.

Importantly, after reading the deposition transcript, she felt everything was accurate.

She then signed the transcript and returned it back to her attorney.

Her attorney then forwarded the original to your lawyer.

What do you think is going to happen next?

The defense attorney is going to pull out your pretrial transcript.

Get ready to have your crediblity destroyed or at least damaged.

Here's how he's going to do it...

“Mrs. Jones, let's turn to page 17, line 7 in the transcript of the pretrial testimony you gave one year ago in your lawyer's office.

The judge now has a copy so he can follow along.

Your attorney already has a copy.

He'll also be following along.

He knows what's coming.

"Isn't it true you were asked these questions and gave these answers on page 17, starting at line 7" (I'd be right next to Mrs. Jones having her read along with me.)

“Mrs. Jones, isn't it true that you had a conversation with Dr. Gold before deciding to have this surgery?”
“Yes, I did.”

“Isn't it true during that conversation Dr. Gold explained to you the risks associated with this surgery?”
“Yes he did. He told me there could be bleeding. He told me I could suffer infection. He told me there's a risk of injuring other adjacent organs.”

If she says “I don't know,” then it looks like she's trying to hide something.

If she says “I don't remember saying that,” I will get the plaintiff's attorney to acknowledge that these are the answers she gave in response to my questions.

If she says “I did not say that,” she is now contradicting herself once again. Plus, it's in writing. And, she signed the transcript verifying that the questions and answers were accurate. 

So let me go back to the title of this article.

In the title I argued that saying “I don't know" was very powerful.

It is.

It's powerful because if you are asked a question to which you are unsure, you do not give a definitive answer.

Instead the better practice is to say “I'm not sure” or “I don't know.”  

If you are unsure about an answer you cannot then answer the question.

That's guessing.

You might be right.

Then again, you might be wrong.

Instead, if you answer “I don't know,” you have a better opportunity at trial to now "remember" the answer.

Let's take this example involving a car accident to show you how this might work...

During your deposition you are asked how fast your car was traveling at the time of impact.

You are unsure.

You are not certain.

You don't want to guess.

Nor do you want to give a range or an approximation.

Instead, you feel it's better to answer “I don't know.”

A year later at trial, you are now asked the same question in front of the jury.

“Mrs. Jones, how fast were you traveling at the time of impact?”
“I was traveling 35 mph,” you say with certainty.

“How do you know that?”
“In the papers I filled out for the insurance company immediately after the accident, they asked me how fast I was traveling at the time of impact. I put down that I was traveling at 35 mph.”

“Can you tell the jury how come you did not remember the answer to that question when the defense lawyer asked you that question during your pretrial testimony one year ago?”
“Yes. I had forgotten that I filled out paperwork for the insurance company when the defense lawyer was questioning me. In preparation for coming into court today, I reviewed all of my papers and found the report I filled out for the insurance company on the same day as the accident happened. That's how I know I was traveling at 35 mph at the time of impact.”

In this instance, by initially claiming she did not know the answer, she had a little bit of leeway to explain at trial how it was she came up with her answer.

This is more credible than the example I showed you earlier in the article.

To learn the best cross examination I ever had during pretrial testimony, I invite you to watch the quick video below...


Gerry Oginski
NY Medical Malpractice & Personal Injury Trial Lawyer