February 2001

Observations from the Bench:
Cross-examination Strategies

Cross-examination is one of the sexiest, most written about aspect of trial practice. Attorneys, young and old alike, pride themselves in being good cross-examiners. The wonderfully entertaining San Francisco lawyer Jim Brosnahan tells the story of an English witness who, after being cross-examined, rides his horse to Scotland and kills himself. "That," Brosnahan says, "is effective cross-examination." 

Examination of an opponent's expert is a pivotal point in any trial. Trials have become more and more a thermometer of a lawyer's ability to examine her opponent's expert, and prepare her expert for a barrage of pointed questions from opposing counsel.

Watching my opponent cross-examine the treating physician in an injury case recently, I saw again the common themes that appear in the interrogation of experts. Themes I had told my doctor to expect. Themes that, hopefully, would keep her away from the hemlock counter.

This strategy is primarily used during examination of busy doctors to show that they have so little contact with their patients they could not possibly recall the details of the interaction.

"Doctor, how many patients do you see in an average day?"

"How many appointments did you have on May 3rd when you saw Mr. Blevins?"

"How much actual time, on the average, do you spend with a patient?"

"Do you know how much time you spent in your examination of Mr. Blevins?"

"Was there anything remarkable about Mr. Blevins' examination that would cause you to remember it specifically today?"

"Do you recall what Mr. Blevins was wearing?"

"Doctor, aside from your notes, what do you recall about the seven-minute exam you performed on Mr. Blevins 18 months ago, during a day you saw 23 other patients?"

This area of cross-examination dissects the case into minute parts, attempting to show that the doctor is, at best, a willing amateur in this area, not an expert who should be believed.

"Doctor, describe your medical practice."

"What portion of your practice deals with persons injured in car wrecks?"

"Doctor, of the 15 percent of your practice dealing with persons injured in car wrecks, what portion relates to balding 46-year-old males, weighing 155 to 165, blue eyes, born in Wyoming?"

Inquiry in this area attempts to show that the expert is basing her entire testimony on second-hand information — that her opinion is only as good as the unsubstantiated, uninvestigated, taken-on-its-face data from someone else.

"Doctor, you were not in the ER when Mr. Blevins came in, were you?"

"You did not see Mr. Blevins, or hear his complaints?"

"You did not examine Mr. Blevins in the ER, did you?"

"You have no first-hand knowledge of what Mr. Blevins told the admitting nurse, do you?"

"You cannot know how accurately the ER notes actually reflect what was said by Mr. Blevins, can you?"

"Doctor, what independent investigation have you done to confirm the information in the ER notes?"

"Doctor, your testimony is only as good as the information you received, isn't it?"

"And, Doctor, you have no idea how accurate that information is, do you?"

Good defense attorneys often go into the information a doctor would have in a perfect world, as if the injured person should have had an exam immediately prior to the drunk driver smashing his car. This attempts to show that the doctor is opining based on incomplete information, therefore her testimony should be discounted.

"Doctor, have you reviewed the plaintiff's birth records to determine if Mr. Blevins had a predisposition to back and neck problems?"

"Doctor, it would be helpful, would it not, to have reviewed any prior x-rays of Mr. Blevins before making any opinion?"

"Doctor, have you acquired, before forming the opinion you give today, any medical reports on the plaintiff prior to this collision?"

"Do you know, aside from what Mr. Blevins told you, whether he has had prior, similar complaints?"

This watch-what-you-say, the-perjury-police-are-nearby approach can work on a timid witness. I have seen it tried to mischaracterize the testimony.

"Doctor, is it your testimony that Mr. Blevins is a lying hypochondriac who is actually better off as a result of the collision?"

Advocates also use this carve-it-in-stone method to draw distinctions between what the records reflect and what the physician would expect.

"Doctor, is it your testimony that Mr. Blevins' recovery was faster than you would have anticipated from the complaints he had in the ER?"

"Doctor, is it your testimony that a person with Mr. Blevins' injuries would normally have been screaming much louder from the pain than the records reflect?"

Usually, though, the restatement is simply to establish the doctor's testimony for the jury, and for their expert to respond to.

"Doctor, is it your testimony that there are no objective findings to support Mr. Blevins' complaints of neck pain?"

"Do you have any explanation for" questions give the impression that there is no more of a reason for the plaintiff's complaints than for why people fall in love. Just the question "do you have an explanation for?" implies the ending: "I can't think of one." It implies that the idea makes so little sense that the defense attorney seeks any explanation.

"Doctor, do you have an explanation for the plaintiff not telling his dentist, two weeks later, about his collision?"

"Doctor, do you have an explanation for the plaintiff waiting 72 hours — 4,320 minutes — after his release from the ER to see his doctor?"

"Doctor, do you have an explanation for the plaintiff missing his May 3rd appointment with his doctor?"

With certain expert witnesses, a good defense attorney will throw slow pitch after slow pitch, waiting for the witness's ego to come to the forefront, showing the witness to be an over-educated, egocentric buffoon.

"Doctor, what makes you think Mr. Blevins was injured at all when there are no objective findings?"

Answer: "As a physician I have seen thousands of cases like this — perhaps millions. As an astute student of human nature in general, and my patients specifically, I can ascertain, in seconds, those persons who are injured and not. Mr. Blevins was injured. Through my graduation as Summa Cum Laude at the University of Professional Snobbery, through my Magna Cum Laude graduation from the Medical School at Insurance U., through my residency at Sacred Claim Hospital, and my years of practice in this community, I can tell!"

A lawyer must prepare the expert witness to tell what she knows, and to understand the jury will give the testimony whatever weight they feel is appropriate. It is not the expert's job to surmise or guess. In any human contact there will be strong and weak points. Just tell, as the oath says, your understanding of "the truth, the whole truth, and nothing but the truth."

• Go over the defense strategies and remind your witness that nothing the expert says will convince the opposing lawyer one iota. The lawyer is there as an advocate, not a juror.
• Assure the expert that she can't get it right. There is always a counter-move and defense, no matter what the testimony, no matter who the expert is.
• Remind your witness that he knows more about what occurred than the attorney examining him. Don't back down. In my example, certainly having more information or being at the ER would have been nice. The patient's examination findings, though, justify the diagnosis. Stick to it.
• Emphasize that the defense usually gains through a free-flowing dialogue. An expert's job, while testifying, is to listen to a question and answer it. The attorney's job is to put the questions and answers together into a story.
• Finally, a good witness will not get stuck on the details. Whether the patient coughed three or four times during the exam is a lot less important than the jury finding an expert credible. An expert should just tell what he knows, and admit what he doesn't. There will be a lot of both in any cross-examination.

Cross-examination is also one of the most painful aspects of a trial. There have been times after my expert has been successfully cross-examined that I have been tempted to drive my car to Canada and kill myself. To cause a lawyer such grief, now, that is effective cross-examination.

Jeff Tolman, a lawyer and the part-time municipal court judge in Poulsbo, is still a true believer in the profession of law after 22 years of practice.

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