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Anatomy of a Civil Trial


chooses not to do so. Keep in mind that defense lawyers, while they are able to mix and match portions of expert testimony to counter your experts, would much prefer to have each of their experts give favorable testimony on the defendant's behalf on every aspect of the case. Te fact that they do not do so is likely indicative of disagreement among defense experts on the area in which an expert has “no opinions.” If you can identify those disagreements and force the hand of the defense expert on those issues at trial, you are well on your way to an effective cross examination.


The Road to Cross-Examination – The Details


is drudgery. respond to) comprehensive interrogatories,


Compared to the excitement of trying a case, discovery I mean, who thinks that it is fun to draft (and requests for


production of documents and requests for admissions? Reviewing volume upon volume of medical records and reports? Who among us can't wait for that next discovery deposition? Well, if your goal is to do the best possible job in crossing a defense expert at trial, the answer to those questions needs to be you. Discovery is the single most important opportunity


a lawyer has to uncover information that can be utilized in crossing an expert witness. And I don't just mean the deposition or report from that expert witness. Although both can provide significant ammunition for cross-examination (which we will discuss later), it is often in the details of the case, particularly in the medical records, where really devastating areas of cross examination are found. Why is this? It's a function of the nature of the expert witness. When it is a medical expert, in the vast majority of cases, that expert has a full-time practice in his medical specialty. While he is willing to review the case and collect his expert fee, he doesn't have the time or the inclination to pore over the entirety of the medical chart. Tis is particularly true when the expert practices in one of the action fields, like surgery or emergency medicine. Tose practitioners work long hours and squeeze in their expert activities when they can. As a result, they are sometimes sloppy in their evaluation of the records. Here is a great example. I once represented an emergency


physician along with a hospital in a case where a young woman died of sepsis (an overwhelming infection) several hours after being treated in the emergency department and discharged to home. Te expert issue in the case was whether the emergency physician ordered the appropriate broad spectrum antibiotic given the patient's presentation. I retained two emergency medicine physicians as experts. Both testified


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in deposition and at trial that the antibiotic was appropriate, proving that by the time the patient came to the hospital, it was too late to save her. Plaintiff's experts testified that the antibiotic was insufficient and was not the appropriate one given her symptoms. Plaintiff ’s attorney (who was from Florida) crossed my experts on the appropriateness of the antibiotic. Te cross-examination was generally ineffective. Te case went to the jury and resulted in a defense verdict. Several months later, I received a telephone call from one of my experts in that case asking if I wanted the medical records back. I told him that I did not. At that point he told me that when he got back into his office after his testimony he was flipping through the medical records when he came upon the hospital bill for the emergency visit and noticed that it did not contain a charge for the antibiotic that supposedly had been given. He then looked at the medical administration records and realized that even though the antibiotic had been ordered, the hospital staff never gave it to the patient. He then told me, “it's a good thing that plaintiff lawyer didn't know this when I was testifying, she would've killed me!” It proved to be a lesson for both him and me. Te devil is in the details.


Trial Reporter / Spring 2012 29


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