Inside District Court
what you’re talking about. Ultimately this will probably lead to the Plaintiff claiming the doctor misquoted him. Sure, that makes the witness look lame on that point, but
getting there by that route is inartful and time-consuming -- especially if you have other contradictions you want to cover during cross. An alternative might first entail securing an admission that the doctor was attentive and competent, using questions like “Doctor Treater examined you thoroughly didn’t he? And when he questioned you, he listened closely? Was anything distracting him? You think he’s a good doctor don’t you? And when you told him about the accident, you were being truthful?” Next, present the testimony you’re going to impeach:
“You testified on direct you were going the speed limit when you crashed?” Get the Plaintiff to acknowledge this sworn prior statement. At this point, ask to approach the witness. Take the 10-104 with you, point to the contradicting passage, and proceed: “Tis is Doctor Treater’s note from your first visit. Your attorney has entered it into evidence.” Read it to him. Ten, don’t even give the witness the opportunity to explain it. Instead, just ask: “Did I read that correctly?” Tere’s only one answer for that question.
From there, move to the next inconsistency, which you
should have tabbed and ready to go, and follow the same general outline until you’re done. To wrap up, you may want to ask if the witness’s memory of the accident was better within a few days of the accident, in the doctor’s office, or today -- the day of trial, months and sometimes years after the event. Ten again, if the accident involved a head injury or resulted in treatment with narcotic painkillers, you might just want to leave well enough alone. Of course, all of the above should suggest to Plaintiffs’ counsel the value of studying the 10-104 statement closely while thinking like a defense attorney in order to spot potential weaknesses. By discussing these with your client, you can prepare together for cross examination, and develop a plan for rehabilitation on redirect. You may even want to consider addressing some of the most glaring weaknesses (such as the initial failure to complain of certain injuries, gaps in treatment, or missed appointments) on direct.
Use Visual Aids I think most judges are visual learners. I know I am.
And so, I strongly encourage the use of maps, diagrams and photographs of the accident scene by counsel for both sides.
14 Trial Reporter / Summer 2012
Page 1 |
Page 2 |
Page 3 |
Page 4 |
Page 5 |
Page 6 |
Page 7 |
Page 8 |
Page 9 |
Page 10 |
Page 11 |
Page 12 |
Page 13 |
Page 14 |
Page 15 |
Page 16 |
Page 17 |
Page 18 |
Page 19 |
Page 20 |
Page 21 |
Page 22 |
Page 23 |
Page 24 |
Page 25 |
Page 26 |
Page 27 |
Page 28 |
Page 29 |
Page 30 |
Page 31 |
Page 32 |
Page 33 |
Page 34 |
Page 35 |
Page 36 |
Page 37 |
Page 38 |
Page 39 |
Page 40 |
Page 41 |
Page 42 |
Page 43 |
Page 44 |
Page 45 |
Page 46 |
Page 47 |
Page 48 |
Page 49 |
Page 50 |
Page 51 |
Page 52 |
Page 53 |
Page 54 |
Page 55 |
Page 56 |
Page 57 |
Page 58 |
Page 59 |
Page 60 |
Page 61 |
Page 62 |
Page 63 |
Page 64 |
Page 65 |
Page 66 |
Page 67 |
Page 68