his words to the jury until I noticed the jury was nodding in agreement with the Doctor’s sentiments. There are two schools of thought for


taking depositions. One is to ask every conceivable question to secure every conceivable answer in advance of trial. The other is the hold-back rule, save some gems for cross examinations at trial. If one is pushing for a settlement, the former may well be best. But if trial appears inevitable, I fall in the second school. I have confronted experts with articles during deposition and notice they flail and flounder at finding an explanation – even of their own words. Unfortunately, they are too often fore- warned and forearmed at trial.


The Fun Part It matters not who is being cross


examined; at the very beginning of your cross examination, the witness will be nervous. He will have set forth his position – the light was green, the defendant doctor deserves a Nobel Prize, your client is not permanently injured and should be trying out for the United States Olympic volleyball team. The witness and the jurors are wondering, “What is the plaintiff ’s counsel going to do now?” The beginning of your cross exami-


nation sends a message to the witness and the jury: “This is what I think is important; this is what matters; I have your full attention and everyone in the courtroom is waiting.” I am a zealot for the view that one starts by hitting them with your best shot. That best shot is whatever you need


from the witness to get across to the jury that your side is right and their side is wrong. There is no single “best shot.” If the witness had testified 70 times and every time for the defense, that may be the best you have. “So, Mr. Expert, every time you have testified, 70 consecutive times, has been for the defense. That’s right. Mr. Expert, can we not agree that if we went to Las Vegas and rolled the dice 70 consecutive times and every time the dice came up snake eyes that those dice


Spring 2008 Trial Reporter 21


are biased; they are loaded.” Objection. Who cares what the judge’s ruling is or the witness’s answer. Always remember to ask that question facing the jury, not the witness. The witness is an insurance medical


examiner who believes your client is malingering and did not need that spinal surgery following the collision. What more do you need to ask at the beginning than: “so doctor, am I correct that what you are telling this jury – after examining my client for only an hour – is that your opinion matters more than the doctor that treated my client for two years?” A strong litany of “Nos” is always a


nice way to go. “Officer, you did not talk to my client? You did not do measure- ments the night of the accident? You did not check the defendant’s vehicle’s brakes?” “Doctor you did not come with any


articles supporting your position. You did not actually look at the x-rays but only at the reports. You did not look at the slides. You have never actually talked


to or touched my client.” One of my favorites from more than


one case is surprisingly simple: “doctor, you do not now do the surgery that the defendant doctor attempted on my cli- ent, do you? So doctor, if one of these jurors needed this surgery, we could not send them to you?” This line of ex- amination leads to the following closing argument: “defense counsel wants you to rely on his expert’s opinions, but if I needed this surgery, the defense counsel could not send me to this ‘expert’ of his to perform the surgery.” These big starts are dictated by the


theory of the case and the testimony of the witness. In a failure to diagnose a tongue-cancer case, the defense centered on causation and that a four-month delay in diagnosis did not matter. The defendant’s super qualified expert, a de- partment head with a 100-page resume, spent an hour and a half explaining the nature of the cancer, how it acts, why my client would have needed the same treatment whenever the diagnosis


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