Surviving cross-examination requires some degree of endurance, a good understanding of the medical facts of the case, and meticulous attention to detail.  In order to understand how an attorney prepares for cross-examination of a medical expert witness, it is important to observe the attorney’s process from beginning to end.

The attorney begins with the medical record of the patient whose care you are either condoning or criticizing.  He makes a careful chronology.  He lists when drugs were given, and knows the side effects of those drugs.  He lists what the medical records show about the effects of those drugs and other treatments.  If there is a critical time frame of a particular hospitalization, the attorney will have a minute-by-minute chronology and a very clear understanding not only of what is in the medical record, but of the underlying pathology, pathophysiology, and anatomy.

Next the attorney, using his own experts, learns the medicine and the national standards of care.  If the case involves a cardiac resuscitation that went badly, the attorney will know the ACLS standards backwards and forwards.   Knowing what is normally done, or what medical students are taught to do, provides the attorney with much of the substance of the cross-examination.

Next the attorney reviews and summarizes all the other depositions in the case.  He knows what the defendant doctor said.  He knows what the nurses said.  He knows what the respiratory therapists said.  He has each of their statements indexed by subject and organized by topic to permit him to do a proper cross-examination.  Overlook any of the key facts or statements made by any of these witnesses, and you become subject to a claim that you do not know the facts of the case.

Finally, the attorney turns his sights to you.  He will examine the correspondence you sent, as well as any you received.  He may want to see your emails.  He will want to know what you reviewed prior to forming your opinion.  Some of this he may get in discovery, and some of it he will get the day of the deposition, which is where you will first get to experience cross-examination.  But before that he will have done research into your background and your published writings.  He will know what you have said in writing on any subject upon which you are testifying.  He will know what you’ve said on the list-serves on the internet.  He will know as much about what you’ve written as you do, and in some cases, maybe more.

In a recent case we faced a nursing expert who had written an extensive series of chapters in a nursing textbook and had been named as a co-editor of the text.  Much of the standard-of-care information in the text was favorable to our case, but the nursing expert did not review her own book before coming to testify.  Plaintiff’s expert had also written several books.  We went to the deposition with a folder marked PLAINTIFF’S EXPERT BOOK EXCERPTS in bold black letters.  Inside the folder was a collection of quotations from the defendant’s nursing expert treatise.  When she was asked to agree or disagree with statements from the nursing treatise that she wrote, and thinking she was disagreeing with the other expert, she disagreed with every one of them.



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