No matter what part of the process, there is a method for responding to courtroom or deposition questions that limits the ability of the opposing party to use your words against you.  Sadly, many experts are unwilling to practice a little verbal judo, and wind up being beaten up in cross-examination.  The following specific techniques are designed to make cross-examination easier and less useful to the opponent.

Demand a simple clear question

Sometimes a question will come at the end of a long line of facts.  If your lawyer objects to the question, that’s usually a clue that the question is a bad one.  Listen to the question carefully.  If it contains more than one subject, make the questioner clarify it.

Counsel	When a patient presents with Asthma, one of the things you do to check them out is order a blood gas?
Witness	I’m not sure I understand your question?
Counsel	What’s unclear about it?
Witness	Are you asking about the standard of care for asthma or the protocol for getting arterial blood gases?
Counsel	I’m asking if blood gases are used to assess asthma patients?
Witness	They are one tool of many.

 

The purpose of demanding a simple and clear question is to prevent an unclear question from producing an unclear answer that might later be used to impeach you on the witness stand.  Had you simply taken the lazy approach and said yes to the first question, the lawyer could then imply that blood gases were always standard of care in assessing asthma patients, something that is clearly not the case.

Don’t Teach

As a medical professional you probably mastered how to do your first blood gas, catheterization, or other procedure using the “see one, do one, teach one” technique.  In your practice you often help colleagues or subordinates by teaching them about procedures or methods.  The tendency to help the opposing lawyer – to put him on the path to litigation righteousness with knowledge – can sometimes be very powerful.  Surely if the lawyer only understood, he would abandon this claim.  But teaching lengthens depositions, provides fodder for cross-examination and impeachment later, and usually turns a 2 hour deposition into a 6 hour marathon.

Break Down Leading Questions

Every time a lawyer asks a leading question his purpose is to get you to say yes or no, and advance his case.  If you answer incorrectly, he will try to impeach you.  To do this, he will rely on your deposition where you answered a similar question in a similar way.  So the way you avoid this is to watch out for leading questions, and break them down, particularly where the questions contain the words “always” or “never.”

 

Counsel	Isn’t it true that in performing an intubation you should always visualize the vocal cords so that you can see the tube pass into the trachea?
Witness	No, that is incorrect.
Counsel	When would it ever be proper, doctor, to do an intubation where you did not visualize the cords?
Witness	When you use the nasotracheal route.

 

Rephrase Leading Questions

Sometimes counsel will ask a question in a deposition that is designed to set up cross-examination at trial.  These are the most dangerous questions, because they are not always obvious.  They call for vigilance on the part of the witness, and often your lawyer can’t help you spot these questions.  Suppose you have a case where the claim is that a blood gas should have been done to assess oxygenation, but the clinicians relied on pulse oximetry instead.  The lawyer asks a question that gets it about 90% right.

 

Counsel	Isn’t it true that blood gases are the gold standard for determining if a patient is well oxygenated?
Witness	If you are asking if that is the most accurate way to get a value for oxygen, that is probably correct, however, it is possible to monitor the oxygenation accurately with other tools.

 

If the witness is lazy, and says yes to this question, then a later opinion offered at trial can be the source of impeachment:  “Didn’t you tell me that the only way to monitor blood oxygen was by blood gases?”  When you say, “no,” or “that’s not what I meant,” then the lawyer takes you down the garden path by showing you the deposition question, and then impeaching you with the prior answers.

In some instances where you have rephrased the question, the lawyer will ask you directly: “is that a yes?” or “is that a no?”  Do not play this game.  The proper response is:  “I answered your question sir.”  Leave the legalities of your answer to the lawyer.

Listen, Analyze, Answer, Breathe

In answering any question at trial, whether on direct or cross-examination, the witness must listen to the question, analyze what answer is called for, and then answer the question in the most succinct manner possible.  If you have to take a breath when answering a question, your answer is too long.

But in cross-examination the most important part of the process is to listen and analyze the question, and answer only the question asked.  Agree when you must, rephrase when you can.

 

Authors:

James R. Bartimus, Esq.
Anthony L. DeWitt, Esq.
Bartimus, Frickleton, Robertson & Gorny, PC
Leawood, KS