self and thus risk alienating the jury. Rad- nor stresses that, with proper early and ex- tensive preparation, that can certainly be done. Preparation includes initial and extensive case investigation, research into the medi- cal and scientific issues to which the expert is expected to testify and understanding them sufficiently well to explain and sim- plify them, and the witness’s complex tes- timony for the jury, to minimize/eliminate the negative and emphasize the positive in the doctor’s testimony. Radnor shows the cross-examining attorney how to confront and challenge the opinions of these wit- nesses through their scientific bases, factu- al bases, and credibility, and not by any dis- paragement of the witness. He also dem-
Cross-Examining Doctors: A Practical Guide, Second Edition
by Alan T. Radnor ALI ABA; 2010; 250 pp.; $199.00
onstrates the importance through all of this of always keeping the jury focused on the examiner’s compelling story, choosing sto- ry-speak rather than getting mired in sci- ence-speak.
The only way these cross-examination mandates may be met is by thorough prep- aration and planning, to which three of the book’s seven chapters is devoted: pre-dis- covery investigation, including learning the basics of anatomy, medical terms, and ap- plicable standards of care; planning and issuing pre-deposition discovery so that questions in deposition are well-informed, pin down the doctor’s specific opinion, and elicit admissions without revealing the framework of cross-examination for trial. This is particularly true with physicians giv- en their level of skill and knowledge; ques- tions in deposition are most useful when they can be focused and specific to avoid the ability of the witness to change or fur- ther explain differently at trial. That is far easier done with information from the dis- covery issued pre-deposition. Dr. Ellen Gaughan, a private-practice,
board-certified neurologist, pain special- ist, and neuropsychiatrist, heartily and with a little humor agrees on the importance of an attorney’s early-preparation and acqui- sition of technical knowledge. Dr Gaughan is often consulted by law firms in her vari- ous areas of specialty and in particular as a certified, independent medical examiner in both New York and Vermont, where Cham- plain Pain Relief and Neurology has its of- fices.
Chuckling softly, reminiscing perhaps, Dr. Gaughan remarked, “It is important to have [mastered] some of the medical knowledge
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[involved in the case because it is surpris- ingly easy to] ask a question that, technical- ly, makes no sense. Neurology and psychia- try are the specialties where the narrative is crucial, especially, neurology; other medi- cine is more black and white.”1 Going one very helpful step further, Dr. Gaughan added that technical acumen is not the only preparation to keep in mind. It is always good to look beyond the stric- tures of an IME report or the other avail- able medical information to look for un- asked questions, particularly related to is- sues of causation. Did the medical witness, for instance, fail to ask questions about pri- or injuries, previous surgeries or any other potentially vulnerable areas of the patient’s damages in the report provided? Did the treating physician-witness happen to note any “dishonesties” by the injured party in a tangential medical area but fail to pursue them? Medical witnesses are usually well- trained to answer only the very specific question put to them, so “oddities” should be inquired into and only good technical and lawyerly preparation will make that possible. As Dr. Gaughan put it, there is “importance” in both what questions were asked by the medical witness (treating phy- sician or independent medical examiner) of the injured party and what were not asked.2 In the closing chapters, Radnor offers an array of strategies and techniques (contrast- ing those most effective with self-defeating techniques) and uses examples from nu- merous transcripts. Radnor delineates sev- eral strategies for controlling the doctor’s testimony to ensure that your argument is presented and the argument of doctor- as-patient-partisan is prevented. Even non responsive answers from the witness can be an opportunity to gain control. By re- phrasing and pursuing the direction until the attorney gets the answer a particular picture is painted for the jury, while all the while never appearing to disrespect or di- rectly challenge or disparage. It is the bal- ance of a fine dancer. This balance is also strongly endorsed
by Dr. Gaughan, who remarked, “I certain- ly agree that discrediting testimony should be done on a solid scientific or clinical ba- sis. Likewise, I firmly believe that discred- iting the witness or the testimony can be done without denigrating, ridiculing, or be- littling [the witness].”3 No doubt there is some sense of self-
preservation, from any witness’ perspec- tive, that would prompt such a response. After all, who relishes facing an attorney on the “other side,” a highly-educated spe- cialist, facile in language/communication, persuasion, and perception-molding who uses those skills to bludgeon you? So, ad- mittedly, the physician witness would have a bias toward a less aggressive approach. Nevertheless, the same interaction serves a
THE VERMONT BAR JOURNAL • FALL 2013 37
lawyerly purpose. In fact Radnor endorses forming a professional relationship with the witness that paints the cross-examining at- torney as a formidable and knowledgeable peer, not a bully. It is more likely to be ef- fective in acquiring information the witness may not otherwise volunteer and paints a far better picture for the jurors. All in all, Cross-Examining Doctors: A Practical Guide is an excellent addition to any litigator’s library. It is superbly orga- nized, detailed, specific, strategically in- triguing, and creative. It virtually ensures that, if reasonably well-followed, the read- er will conduct a tight, orderly, controlled, effective, and efficient cross-examination of this challenging category of expert wit- ness.
____________________ C. Creek Kelsey, Esq., is an attorney at Law in the Public Interest L3C in Thetford Center, VT , which advocates and litigates on behalf of consumer-debtors in all Ver- mont state and federal courts, defending debtors from predatory lenders, harassing collection efforts, and ungrounded lawsuits brought for collection..
____________________ 1
3 Id.
1-10, 2013 (on file with the author). 2
Email exchange with Dr. Ellen Gaughan, Sept. Id.
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