Go to navigation Go to content

Trial Judge Was Shaking His Head in DISBELIEF! Defense Lawyer Didn't Know HOW to Properly Use a Transcript to Cross Examine a Dog Bite Victim

She was bitten by a dog.

Here on Long Island.

She suffered a significant wound.

She needed emergency medical treatment.

Then she needed follow up medical care.

I learned all this in the span of 60 seconds while sitting in the back of the courtroom.

I went to observe.

With my daughter.

She's a college freshman.

She wanted to see a real trial.

She wanted to see real cross examination.

She wanted to hear real objections being made.

She wanted to see how jurors react to testimony.

She wanted to see a real judge make rulings, in real time.

So, I took her to court with me.

In Mineola, New York.

To the Supreme Court of the State of New York.

In Nassau County.

That's our trial level court.

There are trial level courts in each county of New York.

This one just happened to be closest to our home.

We walked into the courtroom.

We didn't know anyone.

I didn't know the attorney for the injured victim, known as the plaintiff's attorney.

I didn't know the defense lawyer either.

I didn't know the judge.

This would be good.

It would be as if I was an outsider looking in on the proceedings.

That's how my daughter felt.

This was her first time watching a real trial.

With real jurors.

Six jurors and two extra jurors known as alternates.

There was a court stenographer there.

She was recording everything that was being said in the courtroom.

When we walked in, the defense lawyer was in the middle of his cross examination.

At first glance it appeared as if he was an experienced attorney.

He looked the part.

He had grey hair.

Wearing a grey suit.

He had a slight swagger and a smirk.

I didn't know if it was justified.

Within a few more minutes, I knew it wasn't.

Within just a few more moments, I knew this attorney didn't exactly know what he was doing.

He was fumbling.

Fumbling through his notes.

Fumbling to find the right page.

Fumbling to find a line of attack.

Then, with every question he asked he started it by saying in a somewhat nasty tone "Mrs. Gonzalez, isn't it true..."

The statements he was asking her to agree with or disagree with didn't exactly make sense.

"Mrs. Gonzalez, I'm reading from your hospital record two days after your visit to the emergency room. It says that your wound was healing. That means you were all better, right?"

WHAT?

No. That's not what it means!

It means you just read from a nurse's note.

It means you just read a nurse's observation of the dog bite wound two days after it happened.

It's an observation.

It's not a conclusion.

It's not the patient's observation.

It's not the patient's conclusion.

It's not something the patient said.

The way he worded this question was bizarre.

The plaintiff's attorney didn't object.

Eh. I would have objected.

I would have argued that the question made no sense and was not accurate.

He didn't.

Instead, he waited for his client to answer.

She said exactly what I was thinking.

"No, that's not what it means."

"But you were getting better, right?"
"I guess," was her reply.

He asked a number of these weirdly worded questions.

This told me immediately that he didn't know how to do a good cross examination.

You see, your goal when cross examining a witness is to lead the witness at all times.

To do that, I ask short, leading questions.

Here's an example...

"Mrs. Gonzalez, on January 1 you were bitten by a dog, right?"

"You suffered a bite wound to your abdomen, true?"

"You then went to the emergency room, right?"

"You complained of pain at the wound site, correct?"

"Your wound was not bleeding, right?"

"No complaint of bleeding?"

"You were given an antibiotic and topical cream to treat it, right?"

"You took the antibiotic?"

"You applied the topical cream to the wound, yes?"

"Two days later you returned to the hospital for follow up, correct?"

"You made no complaint of bleeding, right?"

"There was no oozing from the wound, right?"

"It was slightly red, true?"

"There was no indication this wound was infected, right?"

"Nobody at the hospital ever told you this wound was infected, right?"

These are short leading questions.

I am the one telling the story here.

Not the injured victim.

I only want her to either agree or disagree with my statement.

If she can't answer my question, I want to know.

Then I'll ask another question.

If she doesn't know the answer, that's fine.

I'll move on to the next question.

But this defense lawyer didn't do that.

Instead, he kept reading long entries from her hospital record and then asking strangely worded questions about whether they were true.

Then, he tried to do something that most law school graduates should know how to do.

Cross examine the witness with a transcript.

He had no clue.

He didn't know the right way to do it.

The judge's reaction was priceless.

The judge put both his hands on his head in disbelief.

Then he interrupted the defense lawyer and said "WHERE'S THE CONTRADICTION COUNSELLOR?"

The attorney fumbled his answer.

He tried to tell the judge that the past page and a half that he was mindlessly reading to the jury contained the exact contradiction he was highlighting.

The judge then said "NO IT DOESN'T!"

The judge was right.

There were no contradictions.

Here's what I'm talking about...

This genius of a defense lawyer asked a question.

The witness answered it sincerely.

He then thought he caught her in a lie.

He thought her answer just now was different than what she said during her pretrial question and answer session given a year earlier.

The jury didn't know anything about her pretrial testimony.

They didn't know she had given testimony earlier during the lawsuit process.

This was news to the jury.

The jury wasn't told what this pretrial testimony was about.

The jury didn't know that a judge is not in the room during this question and answer session.

They weren't told this took place in her lawyers' office.

Specifically, his conference room.

They didn't know a jury wasn't present.

They weren't told any of this.

The defense lawyer, believing that the plaintiff just contradicted what she said a year earlier with what she just said in court now, whipped out her pretrial testimony transcript and fumbled for the right page.

It took him about two minutes to find what he was looking for.

That made him look disorganized.

He kept mumbling to himself while he's trying to find the right page.

He kept apologizing to the judge for taking so long to find the right page.

Then, when he thinks he has it, he starts to read.

Question, then answer.

Long winded answers.

He was even reading the injured victim's pauses "Umm," "Uhh," "Yeah..."

Bizarre.

You don't do that.

You just skip those human pauses in the transcript and read the main substance.

Anyway, that wasn't the worst part.

This guy just kept reading.

An entire page.

The judge had a confused look on his face.

He was following along with a copy he had.

I couldn't see the plaintiff's attorney's face.

I was sitting all the way in the back of the courtroom with my daughter.

The plaintiff's attorney was sitting up front, closest to the judge and to the witness.

The judge was shaking his head wondering where all this reading was going.

Then, the defense lawyer turned the page and kept reading!

Halfway down the page, the judge had enough.

"COUNSELLOR! WHAT ARE YOU DOING? THERE'S NO CONTRADICTION IN ANYTHING YOU JUST READ! YOU CAN'T DO THAT!"

The attorney was at a loss for words.

He tried to say that he read the contradiction.

He didn't.

The judge said "YOU CAN'T USE A TRANSCRIPT TO CROSS EXAMINE A WITNESS IF THERE'S NO CONTRADICTION!"

The attorney again tried to verbalize where the contradiction was.

He couldn't.

The judge was shaking his head in disbelief.

The jury couldn't belief this attorney didn't know that.

They didn't understand why he was reading her pretrial testimony given a year earlier.

None of what he read contradicted ANYTHING she testified about.

Nothing!

That told me that this lawyer had no idea how to use a transcript to cross examine a witness.

What a shame.

It's actually pretty easy.

But you have to know how.

You have to know when to use it.

You can't overuse it, otherwise it gets old fast.

So, here is how you PROPERLY use a transcript to cross examine a witness at trial.

During the lawsuit process an injured victim will be questioned by the attorneys who represent the people she sued.

Legally, this is known as a deposition.

It's really a question and answer session.

It takes place in your lawyer's office.

In his conference room.

There is no judge present.

There is no jury present.

There is a court reporter present to record all the questions you are asked and all of the answers you give.

You swear to tell the truth.

This sworn testimony carries the same exact weight as if you are testifying at trial in court.

The only difference is that it takes place in a more relaxed atmosphere.

This deposition is also called an examination before trial.

The questions and answers are transcribed by the court reporter.

That means she transcribes all the questions and all the answers.

She puts them into a booklet known as a transcript.

At the time of trial, during cross-examination, the jury often does not know that this pretrial testimony has taken place.

They don't know that the attorneys have already questioned the witnesses and know what the answers will be.

This is one of the key ways that we prepare our cross examination.

By using the pretrial testimony.

We will ask the same questions that we asked during the pretrial question and answer session.

You would expect that if you ask the same question during trial as you did a year earlier, that the answer would be the same in each case.

Sometimes it is.

Then again, sometimes it's not.

There could be many reasons why a witness has a different answer when testifying at trial.

The witness may have forgotten the answer she gave a year earlier.

The witness may have gotten her answer mixed up with something else.

The witness may be lying and hope that her lie is not recognized.

There could be many reasons why a witness's answer at trial would be different than testimony she gave a year earlier during her deposition.

The jury doesn't know any of this.

All the jury knows at that moment is that the defense lawyer has asked her a question and she has answered it.

They don't know whether it contradicts anything she said at any other time.

It is the attorney's obligation to point out inconsistencies to the jury.

It is the attorney's obligation to point out contradictions in her testimony.

It is the attorney's obligation to highlight those inconsistencies so the jury realizes that this witness is not credible.

An attorney who fails to highlight significant contradictions is doing his client a disservice.

Once an attorney believes that the witness has testified falsely at trial, now there are many ways to show the jury that this statement is simply untrue.

A key strategy to exposing this lie is using the transcript from her pretrial testimony taken a year earlier.

First, it's important to recognize that this strategy should be used sparingly.

It should be used only for clear-cut significant contradictions.

If you try and use prior sworn testimony to establish a contradiction that is not significant, the jury will be left scratching their heads wondering why you are trying to make a big deal out of nothing.

That's exactly what happened here.

There was no contradiction here.

There was nothing different about what she said during her pretrial testimony compared to what she said at trial.

This lawyer made a mistake.

A big one.

He failed to find a contradiction in her testimony.

He thought he did, but he really didn't.

Then, when he tried to use the transcript from a year earlier to show that her testimony at trial was different, he screwed that up royally.

I cringed when I heard the judge yell at him for making such a rookie mistake.

On the other hand, this dog bite victim was not that sympathetic.

She had an edge to her.

I couldn't tell whether this was because she was trying to hide something or she just wasn't warm and fuzzy.

Perceptions are everything a trial.

How a jury perceives a witness means a great deal.

When I spoke to my daughter outside the court house, after leaving the trial, she had the same opinion I did.

She said to me that this defense lawyer didn't know what he was doing.

I then asked her what she thought of the injured victim.

She said “I don't think she was very believable.”

I then asked her why.

She said “She took about 15 seconds to think about her answer before she actually answered the question. That made it seem as if she was trying to come up with her answer rather than simply responding immediately. It made her seem as if she was hiding something while she was calculating exactly how to answer the question correctly.”

I agreed with her evaluation.

The defense attorney didn't know how to properly cross-examine this witness.

Nor did he know how to use a transcript to properly cross-examine the witness.

If you're going to use a transcript, make sure you find a clear-cut contradiction that shows to the jury that this witness is a liar.

Also, if you happen to catch a witness with such a clear contradiction, then you never, ever give her an opportunity to explain why there is such a clear difference between testimony she gave in court and the testimony she gave a year earlier.

If you give the witness an opportunity to explain, she will give a long-winded explanation that justifies exactly why her answer is different now compared to before.

Her explanation will make her look like a saint and make you look like a villain.

That's why during cross examination you never ever ask open-ended questions such as who, what, where, when, why and how.

Those types of questions always call for explanations.

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


Gerry Oginski
NY Medical Malpractice & Personal Injury Trial Lawyer