had been made. I started my cross ex- amination with an intricate question in legalese: “doctor, everything you have just told this jury for 90 minutes is a lot of coulda, woulda, shoulda – was it not?” Objection – both from counsel and the judge. I asked the witness if he understood the question, he said he did not. I turned to the jury and said again: “doctor, everything you have just told this jury for 90 minutes is a lot of coulda, woulda, shoulda. In other words you are testifying to what you think would have happened if the diagnosis had been made four months earlier but we will never know the answer to that question because Dr. Jones failed to timely diag- nose my client’s cancer?” He answered, “Well I’m not testifying on standard of care.” I did not care what his answer was. I was making my point to the jury. With the ever expanding naming of
experts by defendants, the conflicts be- tween the experts are a great minefield for digging. This is one area where even a minor difference of opinion can be useful if clearly presented to the jury. It is perfectly appropriate to read to an expert on the stand from a conflicting expert’s deposition without identifying the source of the statement, until the question has been answered. It may be appropriate to set this cross examination up during the opening statement. Tell the jurors the defendant’s experts do not agree.
Never Forget Normal Human Behavior
The basis for many winning cross ex-
aminations may first be explored during depositions, particularly when the risk of not knowing the answer is too great to await the courtroom. Of course, once answered in deposition, what appears on paper stays on paper. Too often we ignore the simple fact
that the witness being cross examined is a human being with human reac- tions and human thoughts. Delving into those thoughts can often lead to wonderful answers. And when we think in advance about our own thoughts and
22
feelings and realize the witness must be having some thoughts and feelings, quite often we learn they are the same. I represented an innocent bystander
who was struck by a Deputy Sheriff ’s errant bullet. The Sheriff and the State Police had cornered a drunk driver in a cornfield and, when he began to drive out, they fired 20 rounds at the driver. All 20 missed the driver, but one hit my client who had been standing by the side of the road. I knew, without asking, (al- though I did ask later in the deposition) that these officers had likely never fired at a human before, despite a combined 60 years of police service. So I started the deposition by asking the deputy what he did after the shooting and writing of his report. As suspected, he and the other officers had gone out for a drink. I then asked him to describe the conversation between the officers regarding the shoot- ing. He froze and then insisted that there had been no such conversation; they had discussed sports. No juror could ever believe such a statement. It defied common sense. I sued a hospital for my client’s suicide
after she had been hospitalized for a suicide attempt. I did not sue the phy- sician head of the department because he was not on duty that evening. My first question to him: “What were your thoughts when you heard Julie had killed herself on your ward.” After a little back and forth – he claimed to not know what I meant by thoughts – he finally said, “I was saddened, surprised and I was angry.” “Why were you angry?” “I was angry at Julie for killing herself and angry at my staff for letting it happen.” Clearly the truth, what else could he have thought. Needless to say, there was no trial. Two doctors participated in a surgery
where the patient’s bowel was perforated three times. One, a resident, then went home and never saw the patient again. The patient died 48 hours after sur- gery. My question to the resident, who claimed she had not done much but hold retractors during the surgery: “What did you think when you learned Mrs. Jones had died?” She answered, “I cried.” It
Trial Reporter Spring 2008
made no sense that a resident who did not know the patient and had not really performed the surgery would cry upon learning of the patient’s death. She felt responsible, thus she cried.
Conclusion There is no conclusion just as there are
no rules. Cross examination is a search for direction and pointing the jury in the right direction. n
About the Author
Daniel M. Clements is a partner at Salsbury, Clements, Bekman, Marder & Adkins. His practice concentrates in the areas of medical malpractice, products liability, legal malpractice and personal injury. Mr. Clements clerked for United State District Court Judge James R. Mill- er, Jr. and then he was an Assistant U.S. Attorney for the District of Maryland from 1974 to 1979. He is past president of MTLA and was MTLA’s PAC chair from 1990 to 2002. He is a member of the American Board of Trial Advocates and regularly lectures on trial practice. He has been recognized in The Best Law- yers in America and by Maryland Super Lawyers. He has also served as Chair of the Board of Planned Parenthood of Maryland and has been a Trustee of the Maryland Democratic Party. Since January, 2007, he has been volunteer Campaign Director of Maryland for Obama, working on the presidential campaign of Democratic U.S. Senator Barack Obama of Illinois.
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