“The greatest reward for a trial lawyer is to be able to advance the law and also make a positive difference in someone's life.” - Michael Maggiano

The Art of Cross Examination

Maggianos Dozen: The Basic Guidelines

By MICHAEL MAGGIANO, ESQ.

1. Be Prepared / Have a Plan

If you do not have a plan and you are not prepared, pass on the witness and consider calling your malpractice carrier.

2. Know your witness

3. Know your subject matter

4. What are the points that you want to make

5. What are the points that you can make

6. Above all else do no harm to your patient (your case)

7. Keep Control

Ask Leading Questions

a. Be Brief but do not rush
b. Be Concise but thorough
c. Short questions, plain words

A medical witness typically falls out of control in one of three ways:

(1) She has refused to agree with you
(2) She has decided to explain an answer
(3) she is being impermissibly uncooperative.

Why did you get the wrong answer?

(1) you were simply wrong about your facts;
(2) you included a “compound detail”, or
(3) your question contained an “imbedded” characterization.
Ex. of #2 “Compound detail”:
Q When you entered the operating room the chief surgeon was already there, wasn’t he?
A. That is not correct.

How do you get back on track?

Retreat to Constituent Facts.

Break down your question so that you establish in each one a constituent fact - those individual facts that go to form the whole event that you wish to prove -

Q. When you entered the operating room, the chief surgeon was already there, wasn’t she?
A. That is not correct.

Q. Well, you did enter the operating room?
A. I did

Q. You and the chief surgeon were present in the operating room at the same time?
A. We were.

Q. You observed the operation?
A. Yes.

Q. The chief surgeon was there when the procedure began?
A. She was.

Look out for the Imbedded Characterization:

These are statements that appear to be factual but to the listener contain unspoken characterizations or assumptions the listener (witness) is not willing to make.

Example:

Q. Doctor the chest x ray showed evidence of cardiomyopathy?
A. I did not find cardiomyopathy?

Q. Doctor you ordered a chest x ray true?
A. Yes, amongst other tests.

Q. A chest x ray is a diagnostic tool, true?
A. True.

Q. It is used to find evidence of what is wrong with the patient, true?
A. Or to confirm a diagnosis.

Q. To get to a diagnosis, you first have to find evidence of what the patient is suffering from, true.
A. This is what I did.

Q. And to do that you took the chest x ray, true?
A. Yes, I did.

Q. So it was a test to find clues as to what was wrong with your patient, true?
A. That is one way of putting it.

Q. Doctor, the x ray showed perihilar infiltrates, true?
A. Yes.

Q. Perihilar infiltrates can be evidence of congestive changes in the heart?
A. They can be?

Q. Congestive changes can be brought about by Cardiomyopathy, true?
A. They can be.

d. Make your point and move on

e. Avoid One Question Too Many: You only need to ring the bell once

8. Ask Questions to which you already know the Answers.

9. Listen to the Answer

Listen to the Answer

Listen to the Answer

10. Keep your Cool

Do not Quarrel with the Witness

Be Professional: This is not a street fight

11. Do not Permit a Witness on Cross-Examination to Simply Repeat What the Witness said on Direct Examination.

Restated: Do not let the jury hear the bad evidence twice

a. Lock in favorable points first, then
b. Demonstrate the weakness of the witness, then
c. Impeach the witness

12. Do not Permit the Witness to Explain Anything

This is another way of saying, “Control the witness.”

13. Save it for Summation

Sometimes the best answers are saved for Summation

Sometimes the best cross is no cross.

Additional Guidelines:

Behave Cautiously.

Not wise to joust with a specialist in his own field.

Cross Examining along the lines of the expert’s theory is usually disastrous.

Cross is not a deposition.

However, careful, judicious questions, seeking to bring out particular facts and particular points that tend to support your theory of causation and injury usually produce good results.

Bring out helpful information.

Bring out such medical and scientific facts from the knowledge of the expert as will help your case.

Damn the Torpedoes is not the attitude of choice

Know when to retreat:

If getting hurt, move back to a safe zone of questioning.

Anticipate the response as you phrase the question - Does your question require the desired response?

If there is any ambiguity in the question, you can safely assume that the witness will take advantage of it.

Try out your questions on your Trial Team.

Consider the Theme and Theory of the Case: Use them to focus on the points to be covered on Cross.

The Prelude to Summation: Your Cross should be your summation on those points of your case relevant to the witness presented now under cross examination.

Tailor your cross to the Personality involved as well as to the subject.

Be a bit creative: the magic words “Isn’t it true or Isn’t it a fact or “You would agree” when done without variation gets incredibly boring.

End the Cross examination on a high note (Like all other parts of your case)

Turn it up a notch: Your last few questions each should take you a bit higher to your finale.

COMMENTS: The Judge is the God figure in the Courtroom.

If the Judge is going with you there is a Trust Transference to you in the eyes of the jury.

The Jury looks to the Judge for Cues.

Jurors often think that the Judge knows what way to vote on the case but is not telling.

They look for messages in the demeanor of the judge to the lawyers and to the witnesses.

The jurors are wondering what is the Judge thinking on the case. They are looking for messages as to who is right.

So, if your Judge is beating you up -
1. You probably deserve it, and
2. The message to the jury is that you deserve to be beat up, and
3. There is something wrong with your case.

Preparation and Discovery for Cross-Examination of the Opposing Medical Experts at Trial

by Michael Maggiano

Developing a good cross examination begins long before the eve of trial.

Often asked questions

Q. How do you determine whether to depose or not depose the defense medical expert?

A. You cannot answer that question until you have answered the following questions:

1. Who is the Witness?
2. Why is he there?
3. Is he substantially telling the truth?
4. What information is already available to you

Q. What resources are available to explore the background and credentials of the medical expert?

A. Start with the Doctor’s Curriculum Vitae. Use it as a resource for obtaining information on the expert.

1. Specialty:

2. Board Certified or Board Qualified:
Does the Board have a web site.
What standards it has promulgated or what position papers it has issued that relate to your medical issues.

3. Hospital Affiliations and Appointments:

4. Internet Searches: Search the MD at www.askmedi.com, .

5. Literature written by the expert? Go to www.ncbi.nlm.nih.gov/pubmed and enter the doctor’s last name and first two initials.

6. Teaching positions: Check the accuracy of his CV
What does he teach? Check the published courses and programs. Check the school’s website to see if it lists all professors and lecturers to see if and how the expert is listed. Determine the reference books and course materials used or recommended in order to establish learned treatises recognized by the physician.

7. Medical Societies: Check web sites of all medical societies in which he is a member and obtain any position papers by the society relative to the medicine involved in your case.

8. Lectures: Has the expert written or spoken on the subject matter involved to any medical or bar associations.

9. Copies of reports from other cases:

10. Expert Witness Banks:

Depo Connect
ATLA Expert Witness Forum
ATLA Medical Malpractice Forum
Lexus/Nexus Searches of Jury Verdict Research
State and National Jury Verdict Review Search Services.

11. Advertising
Yellow Pages
Internet - Web Site/Page.

Q. What can you ask of the Defense Expert to establish bias?

A. Data from physician providing services.:

B. What is the understanding of the witness as to what he or she has been hired to do and what the compensation is to be.

C. The Expert’s field and scope of practice.

D. An approximation of the amount of his professional time/work devoted to service as an expert.

E. List of cases testified in over past 5 years.

F. The names of the law firms and carriers that he or she performs examinations for and the length of time doing work for each carrier.

G. Seminars or lecturers given to carriers on medicine or the performance of a physical examination and related topics.

H. 1099 information from Carriers.

I. Compensation:

Charge per exam
Charge per report
Charge per hour
Charge per deposition
Charge for trial testimony
Charge to office patients
Number exams per day, per week, per month
Number of depositions per week, per month
Number of times testify for trial per year

J. Subpoena Appointment Book for day and week of exam.

Q. What is the most important thing that you need to know about the defense examiner?

Does he play fair and square?