Every attorney has experienced this.

During cross examination you are so focused on achieving your goals, that sometimes you ask that one question too many.

There are many ways to do this.

You might have made a great point in your favor.

In an effort the highlight that point and toshow the jury that the witness just admitted something important, you ask the question over and over again.

By the third or fourth time, the jury gets it.

The jury realizes you're overdoing it.

The judge realizes it.

Everybody in the courtroom realizes it.

You're the last one to realize you've asked one question too many.

It happens to the best lawyers.

Typically inexperienced and novice attorneys make this mistake more often than experienced veteran attorneys.

Let's say this is a medical malpractice trial.

It's a failure to diagnose cancer case.

The doctor who failed to diagnose her cancer is on the witness stand.

I have an opportunity to cross-examine him.

During the entire two years of litigation leading up to trial, the defense refused to acknowledge they did anything wrong.

The defense refused to acknowledge that anything they did caused or contributed to her injuries.

Even then, they argue that your injuries really are not as bad as you claim them to be.

I now ask this doctor a hypothetical question.

In New York, I am permitted to ask hypothetical questions since this doctor is a medical expert.

I can also use leading questions when cross-examining a physician.

Here's what this would look like...

“Dr. Jones, I want you to assume that my client came to you with the following symptoms...Would you agree that good medical practice requires that you do a blood test as one of the first diagnostic tests to perform?”


“I want you to also assume that when this patient returned to you the following week she now had complaints of blood in her sputum when she would cough. Would you agree that in that circumstance, x-rays would be necessary to evaluate her ongoing condition?”


“Dr. Jones, would you agree that a physician who fails to perform a blood test and an x-ray in that instance would be a violation of the basic standards of medical care?”

You can see the doctor is visibly uncomfortable and has no choice but to say “yes.”

I've now made my point.

The facts in our case show that no blood test was done and that no xray was taken.

A really good trial lawyer will simply move on to the next point.

Instead, I have seen some attorneys simply ask the question again and again in an effort to “clarify” that they heard the doctor correctly.

“Dr. Jones, I just want to make sure I heard you correctly... Did you say that if a doctor fails to obtain a blood test and an x-ray with those set of facts, that would be a departure from good and accepted medical care?”

“Dr. Jones, I'm not sure if the entire jury heard your last answer. Is it true that if a physician fails to obtain a blood test and an x-ray in those circumstances, it would be improper medical care?”

“Your Honor, I'm not sure I heard the doctor correctly. Can I have the court reporter read back the last question and answer?”

You begin to get the point quickly.

Once you have made your point, move on.

There is no need to ask the same question repeatedly for clarification purposes or pretending you did not hear the answer.

The jury gets it.

Move on.

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

Gerry Oginski
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NY Medical Malpractice & Personal Injury Trial Lawyer