Cross-Examining and Impeaching Expert Witnesses in Medical Malpractice Cases

Cross-examination is the interrogation of an expert witness after they have been initially questioned by the opposing counsel. The function of cross-examination is to elicit favorable facts from the expert or raise doubts about their credibility, qualifications, conclusions or the information on which they based them.

The provisions of cross-examination differ between federal and state courts and sometimes by jurisdiction. In federal courts, the interrogating attorney may not pose questions that don't pertain to testimony given during direct examination. However, a majority of state courts allow for questioning that did not originate from direct examination.

Planning Effective Cross Examination in Medical Malpractice Cases

Cross-examination requires a great deal of planning and preparation and can be daunting to inexperienced trial attorneys. The attorney is confronted with a veritable expert who has spent years studying and practicing in a given field. In a very short amount of time, the attorney must research the expert's background, become reasonably educated in the same field and attempt to undermine this seasoned expert's testimony. Or, at very least, raise doubts in the minds of jurors about the conclusions the expert has reached. This is no small task and is better executed when the attorney is equipped with considerable experience prosecuting medical malpractice cases. Ill-thought out cross-examination can be easily botched, with unprepared attorneys quickly treading into unfamiliar waters of technical terms and medical jargon. Speaking to the delicate nature of cross-examination and how easily it may go wrong, evidence expert John Wigmore is quoted as saying “You can do everything with a bayonet except sit on it. A lawyer can do anything with cross-examination if he is skillful enough not to impale his own cause upon it.”

Prior to any courtroom questioning, the expert and opposing counsel will face each other at the deposition. In effect, cross-examination begins here. The attorney can probe into the exact content of the expert's testimony. This allows them to avoid any surprises in the courtroom. The attorney may try to “box in” the expert with a catch all questions such as, “Are there any statements or opinions other than those stated that you intend to give during trial?” This way, the attorney has narrowed the substance of the expert's testimony to what was agreed upon in the deposition. They are ‘boxed in.' Because cross-examination allows the attorney to know the substance of a witness's testimony well before their day in court, the plan of attack may be all the more meticulously crafted. Deviating from the key points of attack can confuse or even bore a jury. Language should be concise, the points cogent, and the delivery thorough but tidy.

Cross Examination Techniques in Medical Malpractice Cases

There is a docket of sound cross-examination techniques employed by attorneys. The attorney strategically chooses their demeanor, depending on the goals they are trying to reach in the cross-examination. They may speak softly and in a friendly tone if they believe the witness to be unfavorably guarded. In other situations, they may adopt a more confrontational or caustic demeanor, if they believe rattling the witness could be to their advantage - a rattled witness may reveal better or additional information than what the opposing counsel had coached them to say. These fine-tuned techniques require a great deal of skill and finesse, as the attorney will usually use simple leading questions with yes or no answers, but will direct the witness to make contradictions, if able. The same question may be repeated in different ways, to elicit different responses from the witness so that the attorney could potentially allege misstatement of fact.

In addition to challenging the witness' memory or understanding of the facts, the lawyer may attempt to impeach the witness. By impeaching a witness, an attorney is reducing the credibility of the witness's statements or the evidence used in their testimony. They may argue that the witness is biased by pointing to their relationship to the parties involved (if any.) They may try to show that the witness has a personal stake in the outcome of the case and therefore can not offer objective testimony. A lawyer could also call a witness' credibility into question by probing into any possible criminal past, where any conviction for a crime of moral dishonesty could reflect negatively on the witness's character. However, if the questioning does not pertain to the matters discussed in the initial examination, the opposing counsel may object.

Use of the Expert Report in Cross Examination

Expert witnesses are required to submit expert reports that list their qualifications, education and other credentials, as well as a document professing their opinion in the case and the reasoning with which they arrived at that conclusion. For an effective cross-examination, a lawyer must reference the opposing counsel's expert report to have a better idea of what they will be contending with when they cross-examine the witness. By meticulously reviewing the expert report, the attorney may locate the strengths and weaknesses of the expert's argument, and conduct a more effective cross-examination after doing so.

Researching the expert's background is of tremendous importance. No two experts, even within the same field, will have twin qualifications or reputations. The expert in question may or may not have prior testifying experience. If they do, previous cases in which they've testified can yield a goldmine of information. In past cases, the expert's testimony may have been rejected for myriad reasons. Noting these reasons and seeing if they are applicable to the current case is a creative and effective way of probing the expert's credibility.

The attorney should not allow the expert to guide them through the expert report, rather the attorney should be handily guiding the expert through the holes and errors in their report. However, flexibility is a virtue of the good cross-examiner. The attorney should be attentive to any slight changes in the wording, presentation, substance, and assumptions derived from the expert's testimony and adjust their cross-examination accordingly, if possible.

Development of a Theory for Cross Examination

In cross-examination, the development of a theory is critical. A theory is the unifying argument the attorney is trying to prove with his or her line of questioning toward the witness. Haphazardly poking holes in the expert's testimony will do little to no good if each hole does not work to support a substantial and convincing theory. For example, the attorney may work around the theory that the expert is honest and upstanding but misinformed and mistaken in their conclusions. They may employ the theory that the expert is greatly exaggerating the content of their testimony. Whichever theory is used during cross-examination, it will work into the wider framework of the defense or prosecution's narrative of the case.

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