Cross-Examination At Trial
At trial cross-examination will usually proceed through four phases:
- Establish the bad facts of the case;
- Seek agreement on those things where we agree;
- Attack the basis for your opinion; and
- Impeach your credibility.
In the first phase of cross-examination, the attorney normally sticks to short, fact-based leading questions. The questions are short to avoid giving you wiggle room, and are meticulously arranged to showcase the bad facts of the case through your testimony:
|Counsel||You are aware that Mrs. Sundermeyer lost 28 pounds in one month?|
|Counsel||And you are aware that there was no written plan to address the weight loss?|
|Counsel||And you were aware that she had reported numerous times that she was not given a tray during the evening hours?|
|Witness||I saw that in one of the depositions; it wasn’t in the medical record.|
|Counsel||And the medical record should have contained that fact if for some reason she didn’t get any food?|
|Witness:||Yes, that’s right.|
|Counsel:||And you were aware that her daughter came in and found 26 separate bruises on her.|
|Witness:||That’s in the medical record.|
|Counsel||Those bruises were on her arms, legs and torso?|
|Witness:||I believe that’s correct.|
Once the attorney leads you through the bad facts – facts that are fixed in the record in most cases and which cannot be modified – the “agreement” phase of the cross-examination will begin. In the agreement phase the attorney takes that information you provided in your deposition, and lays out for the jury how you agreed with key components of the case. This often happens where a defendant calls multiple expert witnesses on liability and causation. A witness who testifies on causation may sometimes admit that the care given did not meet standards, or give other testimony that advances the case.
|Counsel:||You would agree with me that state regulations require twenty-four hour protective oversight and supervision for nursing home residents?|
|Witness:||Yes, that’s in the regulations.|
|Counsel:||And you would agree that those regulations are designed to protect vulnerable elders from harm.|
|Witness:||I assume so.|
|Counsel||And you would agree that oversight and supervision means protecting the elders from being injured in the facility?|
|Witness:||To the extent that it’s possible, yes.|
The purpose of seeking the witnesses agreement is two-fold. First, it helps undermine the testimony previously given, and second, it sets up the direct impeachment of the witnesses’ opinion. For example, the attorney gets the expert to agree to certain undisputed facts that are central to both the plaintiff’s theory of the case, and the expert’s opinion. Once agreement is established as to those facts, they can’t be denied, and it is difficult for an expert to downplay them.
The third phase of cross-examination is aimed at attacking the basis for the opinion. Perhaps the expert did not do a full and fair review of the medical facts. In that case, the opinion’s basis can be attacked factually:
|Counsel||What is the basis for your opinion that the bruises of Mrs. Sundermeyer do not reflect abuse?|
|Witness||Older people have less resilient skin. Their skin breaks down easier. Many of them are on blood thinners. These tend to create bruising. There are some people that you just touch and they bruise. It doesn’t amount to abuse.|
|Counsel||Doctor, please show me in the medical record where Mrs. Sundermeyer had any blood thinners given to her prior to the bruising noted on March 25, 2007.|
|Witness||I don’t think there is any record of her having blood thinners in the medical record, but she was 90, and people who are that old have very thin skin.|
|Counsel||I’m directing you to the Minimum Data Set information which goes back 18 months for the entire time Mrs. Sundermeyer was at the facility. Can you find in there even one time where her skin was noted to be thin or that their were problems with the integument?|
The attack may also focus on the expert’s being willing to credit one person’s testimony rather than considering the entire record. The point is, the attack is not directly on the expert or his opinion, but rather on the facts underlying the opinion. The goal of such a cross-examination is to make the jury believe that the expert, in forming that opinion, either did not consider all the evidence, or considered it with some bias in favor of one party or another.
|Counsel||In reaching your opinion that the care at the facility was not a cause in fact of Mrs. Sundermeyer’s death, you did not consider the testimony by Mrs. Lowry that her mother lost her will to live?|
|Witness:||No, I did not. I do not believe that a person’s will to live determines whether they live or die. I believe that is established more on biological facts.|
|Counsel||You did not consider the impact of her being emotionally-isolated at the facility by the staff taking away her telephone and not letting her call her family?|
|Witness||I don’t believe that happened, no.|
|Counsel||So you’re also discounting the idea that receiving “care” that resulted in 26 bruises in any way affected her life expectancy.|
|Witness||I’ve had a lot of bruises in my life and none of them caused me to want to quit living. She died because she was 90 and in poor health. Not because she bruised easily.|
The opinion may also be attacked by scholarly research. The availability of med-line searches has made it possible to download the abstracts of the latest medical research in a matter of minutes. Libraries will fax copies of research articles for a fee. The net effect of all of this is that if an expert bases his opinion on outdated research, older textbooks, or similar sources, his opinion is undermined by being asked about more recent publications. Before going to the deposition, and certainly before trial, the expert should know what the state of the art is for evidence-based medicine on the subject upon which he is designated as an expert. If new research appears after your deposition that affects your opinion on the substance of the case, notify your attorney.
The final phase of cross-examination is aimed at impeaching you as the expert on the basis of other factors. Chief among those is the amount of your expert remuneration, the amount of time spent reviewing the records and formulating an opinion, and any disagreement between the opinions you have previously given.
Experts are usually cautioned to work as often for the plaintiff as the defendant if they wish to have credibility with juries. There is a good reason for this, as shown in this colloquy:
|Counsel||In your deposition you noted that you have testified six times in the last five years, is that correct?|
|Counsel||And each time you testified, you testified for the defendant, is that correct?|
|Counsel||And in each case you were asked if the doctor deviated from the standard of care, and you said no?|
|Counsel||So, you’ve practiced for 22 years, right?|
|Counsel||Practiced in New York, Connecticut, and now Florida?|
|Witness||You left out Michigan, but yes.|
|Counsel||You’ve been on staff at seven different hospitals?|
|Counsel||Seen medical care provided by interns, residents, and other physicians?|
|Counsel||But in all that time you’ve never seen a case of medical malpractice?|
Unless an expert witness fee is significantly in excess of the other fees being charged by other experts in the case, impeachment on the basis of your fee is fairly weak. Sometimes, however, in asking the question the attorney will imply that you are being paid $700 per hour for your testimony. You should always reply to this question by correcting it: “No, sir, I am being paid $700 per hour for the time spent away from my very busy practice.”
James R. Bartimus, Esq.
Anthony L. DeWitt, Esq.
Bartimus, Frickleton, Robertson & Gorny, PC
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