It's a medical malpractice trial.

Here in New York.

She claims her doctor was careless.

She says his carelessness caused her injury.

She says her injuries are permanent and disabling.

Her doctor disagrees.

He says he did nothing wrong.

He says even if he did something wrong, so did you,.

He also disputes how badly injured she is.

Needless to say, this case is not going to be settled prior to trial.

Each side gears up for trial.

The final day arrives and now a jury has been selected.

The trial judge has given the jury legal instructions about what to expect during this trial.

The attorneys have now given their opening arguments.

It's now time for the injured patient to take the witness stand.

“I call Mrs. Jones the witness stand,” I exclaim.

She walks to the witness stand, raises her right hand, with her left hand on the Bible and swears to tell the truth.

She's a very sympathetic witness.

She's a little old lady.

She is articulate.

She has a good memory.

She is polite.

She smiles a lot.

She looks at the jury.

She wants the jury to know what happened to her.

She wants the jury to understand how her injuries have affected her daily life.

I now begin to ask her questions about what happened to her in the hospital.

She is very precise.

She is very intelligent.

I then begin to ask her questions about conversations she had with various nurses and doctors.

I begin to ask her a question about what one of her doctors said to her in response to her complaint.

She begins to tell the entire courtroom how this doctor felt that one of her other physicians who was treating her was careless and that's why she was injured.

A fraction of a second after she answered, the defense attorney jumped up out of his chair as if he were being shot out of a cannon and at the top of his lungs yelled out “OBJECTION Judge! That's hearsay!”

He then stays stands and waits for the judge to rule.

What just happened?

I'll tell you what happened...

You need to know that an attorney has an obligation to stand up for his client during the course of questioning.

That means if the attorney believes that a question is improper, he has an obligation to stand up and let the court know his feeling about that question.

I should correct that.

It's not a feeling that he lets the court know about.

Instead, he must make a legal objection explaining why he believes that question is legally improper.

The judge then turns to me, asking me to reply to this accusation that my question is appropriate.

I must give a coherent legal reason why I believe the question is appropriate.

The judge will then make a snap decision about whether to allow the question to the asked and answered or whether the question should not be asked and the witness should not answer.

The judge has a number of options.

If he says “Objection overruled” it means that the witness can go ahead and answer the question.

The judge has decided this question is appropriate.

If the judge feels that the question is inappropriate, he will instead say “Objection sustained!”

In that instance, the attorney is not to ask that question and the witness is not to answer it.

Objections can be made for many reasons including attempts to get certain evidence in front of the jury.

The same procedure applies.

An attorney who is making the objection must stand up immediately voice his objection with a legal reason why the evidence or the question is inappropriate.

The opposing attorney must give a clear and coherent legal reason why the evidence being offered or the question being asked is legally inappropriate.

You should know there are some instances where the judge simply does not have sufficient information to make an educated decision about which way to rule.

In that instance, the judge might tell the attorneys that he is going to reserve decision on this matter until he has an opportunity to do further legal research.

Alternatively, in an attempt to learn more about this legal issue, he might ask the attorneys to prepare legal briefs to submit to him later that day or the following day so he can make it intelligent decision about which to rule.

What happens where I ask a question and the witness immediately blurts out her answer before the opposing attorney has an opportunity to object?

Well, that's just tough luck.

He should have objected faster.

The jury cannot un-hear what they just heard.

But what if my question was inappropriate?

More importantly, what if the question was inappropriate and the answer was also inappropriate?

If the jury already heard the question and the answer, even if the judge rules that the question and the answer were inappropriate, how can they forget what they just heard?

This is a challenge that arises in many trials.

This happens not because an attorney is trying to be tricky, hoping to get an answer that should not be heard.

Instead, it occurs because the question might not be phrased properly.

It can occur because the witness might be too eager to answer the question quickly, hoping that the quicker they answer a question the quicker they can get off the witness stand.

It can occur when the defense attorney is not paying attention and fails to timely make an objection.

It can also occur when the defense attorney makes an objection and before the judge has an opportunity to rule, the witness blurts out the answer inadvertently.

This scenario does happen often.

The judge has a simple instruction he gives to the jury in the event this occurs.

Let's say I ask a question that calls for my client to discuss a conversation she had with one of the doctors at the hospital.

That should draw an immediate objection from the defense attorney.


Because that doctor is not coming into court to testify.

Because now my client is going to tell the jury about a private conversation she had with this doctor.

How does the defense attorney know that this conversation really happened?

If the defense lawyer is not able to verify the facts of that conversation or the details of what they discussed by questioning that doctor at trial how then can he verify or dispute what my client is saying?

Because this particular doctor is not a party to this lawsuit, this conversation would be called 'hearsay'.

That means my client would not be able to tell the jury what the doctor said in response to her complaints.

If we were to call this doctor to court to testify either voluntarily or by a subpoena, then we would be allowed to have testimony from my client describing the details of her conversation.

However, in this example where I asked my client to describe the conversation she had with this doctor who clearly is pointing a finger at her original treating physician, the defense attorney has every legal right to stand up and object to that question.

If the attorney is slow to recognize this hearsay problem, my client will go ahead and answer the question.

Moments after my client has finished her answer, the defense attorney wakes from his slumber and recognizes that this is hearsay and should not have been allowed.

Well, the jury has now heard the question and her answer.

The judge has now heard the answer.

Everyone has heard the answer.

At this point the defense attorney should ask the judge for a curative or corrective instruction letting the jury know that this is inappropriate.

The defense attorney should be asking the judge to explain to the jury what is hearsay and why this question is inappropriate.

In this scenario, the judge will likely tell the jury that they are to disregard the question and to disregard the witness' answer.

He will also tell the jury that they are not to consider that information when they decide who is more likely right than wrong in this trial.

What happens if the jury does consider this testimony and ultimately decides in favor of the injured patient primarily because of this statement that confirmed her first doctor committed malpractice?

If the defense attorney can somehow show that the jury was influenced as a result of this improper question and this answer, an appellate court might decide that this question and answer were so prejudicial as to alter the outcome of this trial.

In that instance, the appeals court has the opportunity, if they feel this was a significant error, to throw out the verdict and send the case back down for a new trial to start all over again.

Alternatively, the appeals court could decide that this was nothing but harmless error and it's unlikely that the jury reached its conclusion based upon this single question and answer.

What happens if the defense attorney asked the trial judge for a curative instruction to correct what the jury just heard when they should never have heard it to begin with?

If the judge fails to give the jury a corrective instruction, that may be grounds for an appeal to overturn the verdict.

To learn more about how these trials work here in New York, I invite you to watch the quick video below...

Gerry Oginski
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NY Medical Malpractice & Personal Injury Trial Lawyer