It's dramatic. It's exciting. It's confrontational.
Cross examination is the opportunity to question a witness's credibility and confront him with inconsistent statements.
TV and the movies have made watching cross examinations exciting and very dramatic. Now, when an attorney gets up in real life to cross-examine a witness, jurors may expect the same type of drama and histrionics that go along with what they see in a movie or on television.
I want to share a little secret with you...that does happen from time to time. However, it is not the norm.
If you want great classic cross-examination scenes, think of the movie “The Verdict” with Paul Newman. Think of "A Few Good Men” with Tom Cruise. There are many great courtroom dramas that make you eager to want to go to law school after watching such great cross-examinations.
There are some attorneys who yell, scream and pound the table.
However, other attorneys are simply sarcastic, snide and unbelieving when questioning a hostile and adverse witness. Still, others are polite, respectful and quite nice when they cross-examine a witness.
It all depends on the attorney's personality. It also depends on what type of witness the lawyer is questioning.
There's a big difference in questioning an 80-year-old grandmother who is otherwise nice and polite compared to an aggressive, hard hitting medical expert who comes in as a fierce advocate against your position.
There are many different strategies and tactics to use in order to effectively cross-examine a witness during a medical malpractice trial, a car accident trial or even a wrongful death trial.
We like to say that cross-examination is a “search for the truth.”
In a sense, that's what it is. We are challenging the witnesses statements. We are challenging the witnesses observations. We are also challenging the witness's conclusions.
When you are having a conversation with someone who has different beliefs and opinions than you, what is the first thing that happens once you express an opinion or conclusion that is diametrically opposed to the person you are talking to? The first thing that will usually happen is that they will get defensive. They will hunker down and try and defend their position.
It doesn't matter what your position is, as soon as you question their credibility, they will get offended and do everything possible to show you that they are right. The same thing happens at trial.
Witnesses become defensive.
They try and defend their statements and what they have observed. They don't want someone questioning their believability.
One of the remarkable things about cross-examination is that it allows me, as the attorney who is questioning an adverse witness, to tell a story in my own words. You might be asking yourself what I am talking about since that's not really cross examination.
However, if you look at really good trial attorneys, and I'm not talking about the ones you see on TV or in the movies, you will notice that they use cross examination as a fantastic way to tell their version of events.
How does that happen?
It happens because an attorney who gets up to cross-examine a witness now has the ability to use leading questions.
Here's what I mean. By the time I get up to cross-examine a witness, my adversary has already had an opportunity to perform what is known as a “direct examination.” A direct exam means that the attorney has questioned a friendly witness and is now asking him open-ended questions such as who, where, why, how, when, what. Those questions allow the witness to go ahead and explain and tell a story.
When my adversary is done with his friendly questioning, I now have an opportunity to get up and question the same witness.
However, I don't want to give this witness an opportunity to explain anything.
He's already done enough of that. I want to challenge him on specific statements that he has made. I want to challenge him and his credibility about his conclusions. The only way I can truly do that is by asking leading questions.
Now what is a leading question?
A leading question is one where I am putting words in the witnesses mouth and simply asking the witness to agree, disagree or tell me that he cannot answer that question. I really do not want the witness to give the jury any other information. If I am asking a leading question, my question will now have statements and facts that support our particular position.
Here's an example:
Dr. Jones, you graduated from Yale University medical school, correct?
On January 1 my client came to see you because she had pain in her belly, true?
In order to properly evaluate my client's complaints, you, as a competent physician must always take a detailed medical history, correct?
After taking a detailed medical history you then perform a physical examination, right?
After your physical examination and after talking to the patient and after performing your detailed history you will formulate in your own mind a working diagnosis of the different possibilities the patient might have, correct?
That's often known as a differential diagnosis, correct?
A differential diagnosis is a listing of the most likely possibilities the patient has in order of most likely to least likely, correct?
One of your responsibilities and obligations as a board-certified physician is to then perform different tasks in order to rule in or rule out the most likely causes of her problem, true?
That would be good medical practice, correct?
And would you agree doctor, that a physician who failed to obtain a detailed and thorough medical history would have violated the basic standards of medical care?
Would you also agree that a doctor who failed to perform a physical examination of a patient who made these complaints would also be a violation of the basic standards of medical care?”
In this example, what have I done?
I've gotten the witness to either agree or disagree with some basic statements about what a physician's obligations are when seeing a patient for the first time. You will notice that in all of my questions I did not give the witness an opportunity to explain anything. I simply want the doctor to agree, disagree or tell me that he cannot answer the question.
Contrary to popular belief, my goal is not to argue with the witness.
I accomplish nothing by arguing with a witness I am cross-examining. My goal is not to scream and yell at the witness. My goal is not to ridicule the witness.
Instead, my goal is to tell a story and set up the witness so that he can come to the realization that if the facts as we have described them are true, then he has no choice but to agree with our claim. That's known as getting a witness to agree with our hypothetical questions.
Let me share with you what that is about.
In medical malpractice cases in New York, we are required to bring in medical experts to support our claim. Likewise, the defense must do the same in order to defend their position. In almost every instance, the medical experts have differing viewpoints. They each have a different outlook on what happened in the case. Each expert believes a different set of facts.
That means that when I cross examine the defense's expert, I will ask that expert to assume that certain facts are true. That hypothetical scenario is permitted in every single medical malpractice case.
In my hypothetical questions, which by the way must be based upon testimony in the record, I will ask the witness to assume that those facts are true. Then, I will ask the witness to assume that if those facts are true, would he agree that a doctor who failed to do x, y or z, would have departed and violated the basic standards of medical care?
Fierce Advcoate or Unbiased Expert?
A doctor who comes in to court as a true expert and not as a fierce advocate will often agree that there were violations from the standard of care in this scenario. There are some experts who will not agree to anything no matter how clear and obvious it is. That is an opportunity to show to the jury how outrageous their position is and it gives me an opportunity to ridicule and mock that witness's testimony...not while I'm cross-examining that expert but rather during closing arguments.
You might be asking yourself why would I not ridicule and mock that medical expert during cross examination and instead wait till closing remarks? There is a key reason for that.
Remember when I said earlier that one of the key goals of cross examining a witness is to confront and challenge their observations and conclusions? Well, since the jury ultimately determines who is more likely right than wrong and who is more believable, they are the ones to determine which set of facts to believe in our case. They are known as the fact-finders.
If the jury believes our set of facts, now they look to the experts to determine whether there were violations from the basic standards of medical care, not just from our own medical experts but they also look to see whether the defense's experts will have agreed with our claim when they were asked those hypothetical questions.
If it is obvious for all to see that our set of facts are more likely right that wrong and a defense medical expert is now contradicting every single thing we are saying, and the expert even refuses to a knowledge that our fact pattern occurred, then the jury is permitted to disregard that expert's testimony or give very little weight and credibility to that witness.
The more credible experts are ones who acknowledge that there are instances where a doctor may have violated good medical care if certain facts are proven to be true.
Remember, cross examination does not equate to yelling examination or screeching examination or table pounding cross examination.
Cross-examination really is a search for the truth to expose the witness's biases, prejudices, beliefs as well as whether that witness has truly had an opportunity to look at all the available information before coming to specific conclusions about who is right and who is wrong.
Have you seen cross-examination in person, live?
If you have not had an opportunity to watch a cross examination in person, I highly encourage you to go into one of our public courtrooms in our state court system here in New York. In every civil lawsuit, courtrooms are open to the public. You need only walk and sit down at the back of the courtroom and start watching. You'll immediately notice really good and really experienced trial attorneys and now after having read this article you will be keenly aware of what the attorney is trying to do during cross examination.
Pay attention to his technique and try and figure out what the attorney's goals are and how he is trying to accomplish them during the course of his cross-examination.
To learn even more, I invite you to watch the video below.