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?
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.
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?
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?
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
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.
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.