Category Archives: Cross

A CROSS EXAMINATION SUGGESTION


We all have our own way of preparing for cross examination and for the style we adopt during the process. I thought I’d reprint a section of part of a cross examination preparation from a drug company products case to give you an general idea  of one of the steps I take in preparing for cross examination. This would represent part of a whole examination and would be part of the preparation. The actual cross examination could end up in outline form or it might be a stack of exhibits with tags containing ideas.

I’ve publishing it in it’s gross form before the additional editing and without explaining the significance of some of the outline as it’s simply an example to illustrate one way to prepare for cross examination. It would be reviewed and revised and finally end up in a brief outline format. This is how I start the process.

                                                   CROSS EXAM POINTS

COLLATERAL ATTACK

  1. lack of materials to base opinion upon
  2. how many hours to date
  3. number of times testified for plaintiffs vs
  4. total fees to date
  5. if a drug company ignores indications of risk and danger to children they would be wrong
  6. In the drug industry there are safety red lights or warnings aren’t there?
  7. wouldn’t you agree we have the right to trust pharmaceutical company to protect us from risk and danger?
  8. how much is hourly rate
  9. number of times testified for defendants
  10. relationship to: defense lawyers, experts etc.
  11. would you agree a drug company must hold the safety, health and welfare of the public paramount in selling their products

GENERAL POINTS

  1. FEES & RELATIONSHIP TO DEFENSE & ATTYS 
  2. TALKED TO ATTYS?? 
  3. PHARMACEUTICAL CO’S DUTY OF REASONABLE PRUDENCE 
  4. DUTY TO USE REASONABLE MEANS TO:

(1)       DISCOVER AND ELIMINATE PREVENTABLE RISK OF SEIZURE, BRAIN OR DEATH CAUSED BY SIDE EFFECT 

(2)       IF NOT PREVENTABLE, TO GIVE TIMELY & ADEQUATE WARNINGS 

(3)       TO ANALYZE, INVESTIGATE, AND TEST IT’S PRODUCTS 

(4)       TO STAY ABREAST OF MEDICAL RESEARCH, SCIENTIFIC KNOWLEDGE AND MEDICAL PUBLICATIONS ABOUT IT’S PRODUCTS 

  1. PHARMACEUTICAL CO’S DUTY TO WARN 
  2. ALWAYS WRONG TO DELIBERATELY WITHHOLD OR CONCEAL DANGERS BECAUSE OF FEAR OF HURTING SALES 
  3. COMPANY SHOULD: 

(1)       USE METHODS OF WARNING WHICH ARE EFFECTIVE 

(2)       USE WARNINGS WHICH SUFFICIENTLY INFORM GENERAL PRACTIONIER AS WELL AS SPECIALIST 

(3)       GIVE COMPLETE AND ACCURATE INFORMATION PROMPTLY 

(4)       GIVE WARNING ABOUT DANGEROUS ASPECTS OF IT’S PRODUCT EVEN AFTER IT HAS BEEN PUT ON THE MARKET

  1. DUTY ARISES WHENEVER REASONABLE PERSON USING PRODUCT WOULD WANT TO BE INFORMED OF RISK

 

(1)       DO YOU HAVE AN OPINION, BASED UPON REASONABLE PROBABILITY, WHETHER: 

(a)       THESE DEFENDANTS, KEY & SCHERING, UTILIZED METHODS OF WARNING PHYSICIANS LIKE DR. EDWARDS, WHICH WERE REASONABLY EFFECTIVE, TAKING INTO ACCOUNT, BOTH THE SERIOUSNESS OF THE DRUG’S SIDE EFFECTS, ADVERSE REACTIONS OR DANGERS AND THE DIFFICULTY INHERENT IN GIVING SUCH INFORMATION PHYSICIANS LIKE DR. EDWARDS WHO OUGHT TO BE SO INFOMRED? 

(b)       THESE DEFENDNATS GAVE TIMELY AND ADEQUATE WARNINGS TO THE MEDICAL PROFESSION OF THE DANGERS FROM THEIR PRODUCT THEO DUR? (Cirpo interaction, Saturation kinetics, Baldini rule re stat levels) 

(e)       THESE DEFENDANTS KNEW OR HAD REASON TO KNOW OF THESE DANGERS? 

  1. NATURE OF WARNINGS 
  2. WARNINGS: 

(1)       ARE A LAST RESORT – ELIMINATE DANGER IS FIRST STEP 

(2)       MUST COMMUNICATE SERIOUSNESS OF POTENTIAL HARM AND HOW TO AVOID IT 

(3)       SHOULD BE SUFFICIENTLY PROMINENT IN SIZE LOCATION AND OTHER FACTORS TO ASSURE IT WILL BE SEEN & READ 

Note: See boxed warnings from PDR for Schering products 

  1. PROMOTIONAL MATERIAL SHOULD INCLUDE DISCLOSURE AND WARNINGS RE SIDE EFFECTS, PRECAUTIONS & CONTRAINDICATIONS
  2.  
  3. COST vs RISK ANALYSIS
  4. Analyzing What is Reasonable 

(1)       SHOULD CONSIDER:

(a)       LIKELIHOOD OF INJURY HAPPENING 

(b)       SERIOUSNESS OF HARM IF IT DOES HAPPEN 

  1. Cost vs Benefit Analysis 

(1)       SHOULD CONSIDER: 

(a)       COST OF INFORMING OR WARNING

(b)       DIFFICULTY AND TIME INVOLVED IN INFORMING 

(c)       THE BENEFIT FROM GIVING THE WARNING 

 (d)      WHETHER METHOD OF INFORMING INVOLVES ACCEPTED PROCEDURE IN INDUSTRY 

Note: Dear Doctor letters common – Statgram used 

(e)       WHAT HARM CAUSED BY GIVING WARNING

  1. THE LIKELIHOOD OF THE HARM 
  2. THE SERIOUSNESS OF THE HARM COMPARED TO THE BENEFIT
  3. Analysis & Conclusion 

(1)       THE GREATER THE POTENTIAL HARM THE GREATER THE DUTY TO ACT

(a)       (Analogy) CYANIDE POISON PILLS IN SIX OUT OF HUNDREDS OF THOUSANDS OF BOTTLES OF SUDAFED 

(b)       IF ONLY ONE CHILD SAVED FROM SEIZURE, BRAIN INJURY OR DEATH IT’S WORTH THE TIME AND EXPENSE 

(2)       “OUNCE OF PREVENTION WORTH A POUND OF CURE” 

(3)       “BETTER TO BE SAFE THEN SORRY”

  1. DUTY TO ACT AND NOT CONCEAL
  2. PILOT OF 747 SEES FLASHING RED LIGHT: 

(1)       EXPECT HIM TO ACT IMMEDIATELY – NOT PUT TAPE OVER  LIGHT AND IGNORE?

(2)    RIGHT TO TRUST PHARMACEUTICAL COMPANIES 

  1. HAVE RIGHT TO EXPECT AND TRUST CO’S ACTING REASONABLY TO PROTECT PUBLIC FROM HARM 

(1)       PUBLIC DOESN’T INSPECT TIRES AND QUALIFICATIONS OF PILOT BEFORE FLYING – HAVE RIGHT TO TRUST PILOT & AIRPLANE COMPANY 

  1. FAULT CLAIMED 

SEE

 

  1. CLAIMS SHEET
  2. CLAIMS POSTER
  3. CONCEALMENT POSTER
  4. BOCCI TIME LINE POSTER
  5. ATTACK & DEFENSE SHEET
  6. DEPOSITION EXHIBITS
  7. POINTS:

(1)          SENT OUT 3 STATGRAMS WITHIN A WEEK AFTER PRIME TIME – NOT ONE DEAR DOCTOR LETTER

(2)          DIDN’T HAVE TO WAIT – NO FDA REQUIREMENT

(3)          PAST FACTS RE KEY MARKETING 

  1. CROSS EXAM NOTEBOOK TABS 
  2. Tab 1: DRUG MANUF. CODE OF FAIR PRACTICES
  3. Tab 2: SEE REVISED PDR RE “FOOD MAY INFLUENCE” SEE Tab 5 FOR AD – “NOT SIGNIFICANTLY AFFECTED BY”
  4. Tab 6: “LOT OF REASONS” – $35 MILLION Tab 10 memo
  5. Tab 8: FISONS
  6. Tab 9: 10/30/87 MEMO WITH ARTICLES
  7. Tab 12: NOTICE OF ADVERSE – SEE AD AFTER LETTER
  8. Tab 14: EX. 30
  9. Tab 15: McEWEN CASE
  10. Tab 16: ALLERGY ARTICLE
  11. Tab 19: FDA BURN OUT
  12. Tab 26: IF SEEING MORE THEN ONE DOCTOR
  13. Tab 27: NEW ENGLAND ARTICLE

PHYSCIAN QUESTION:

1.       IF A DRUG CO DISCOVERS IMPORTANT INFORMATION RELATING TO THE SAFETY RISKS OF A DRUG YOU ARE PRESCIBING TO PATIENTS A DO YOU EXPECT THEM TO NOTIFY YOU OF THE NEW DANGERS CLEARLY & PROMPTLY? WHY?

SOME BRIEF THOUGHTS ABOUT CROSS EXAMINATION

Good cross examination usually begins, not at trial, but with discovery.   This is particularly true in connection with depositions. Much of our cross examination resource involves our depositions. The mistake most lawyers make is that they are not thinking about the jury when they are deposing a witness, they are thinking about motions and the witness. Lawyers tend to think that the witness is the audience but in fact the real audience is a jury which has not yet been selected and that’s where the focus should be.

Some good ideas came out of a 1984 Gerry Spence participation at an ABA  meeting about questioning an adverse witness. It involved a mock trial involving defamation. Unlike most lawyers who focus upon specific questions regarding individual issues, Gerry’s approach was to encourage the idea of freedom of press having a corresponding obligation of fair reporting. His approach involved a big picture story rather than a series of individual points. For example:

Q. You agree that no rights can exist without a corresponding duty? We have a right, to drive down the street but we have a duty not to drive carelessly?

Q. While we have a right to drive we also have a duty not to do so recklessly and injure someone? You would agree with that?

Q.  You would agree, that you have a duty to be fair about  you write?

If  you think about cross examination you probably would agree with these general points:

  1. Develop a theme and stick to it.
  2. Keep it simple
  3. listen to the witness
  4. keep an eye on the jury, the judge in your opponent
  5. Remember the rule: “don’t strike a cane unless you slay him” don’t attempt to “crush” a witness unless you can do it.
  6. Keep a poker face even when you shoot yourself in the foot. However don’t be afraid to laugh at yourself in front of the jury.
  7. Do not ask the judge for help
  8. he who angers you has conquered you.
  9. Have the courage to ask hard questions and be prepared to deal with answers.

As to anger, in October 1985 a newspaper reported that during a trial for armed robbery in Oklahoma City the defendant was acting as his own attorney. Apparently the defendant, Dennis Newton, age 47, did a fair job up to the time the manager of the store testified and identified him as the robber. In cross-examination Newton became so angry and upset that he suddenly blurted out: “I should have blown your (expletive) head off.” Suddenly realizing what he had done he quickly added “if I had been the one who was there.” The paper reported that it took the jury only 20 minutes to convict him of armed robbery.

Then there is the actual example about the importance of simplicity from a  transcript of a trial in Tallahassee Florida where a defendant was charged shooting another man in the groin. The direct exam by the prosecutor went like this:

Q. Ms. Brown you were in the bar having a drink with James?

A. Yes

Q. Tommy Lee entered the bar and came over to where you and James were sitting?

A yes sir, he did

Q he yelled something at James and hit James in the mouth?

A yes sir, that’s what happened.

Q James stood back up and hit Tommy Lee?

A yes

Q and then Tommy Lee pulled out his gun and shot James in the fracas?

The witness hesitated. She glanced up at the judge, look back at the district attorney and then said: “no sir. Just above it.”

 

CROSS EXAMINATION IDEAS

Have you thought about what the possible objectives are in cross examination? Often times we have not thought out the possible avenues we could take in cross examining a witness. Here for example are some of the objectives one might have in cross examination:

  • To establish the witness is not telling the truth on one or more material points.
  • To show that the witness is biased and has a motive for coloring the testimony.
  • To show that the testimony is improbable.
  • To obtain admissions about particular facts.
  • To question the accuracy of testimony by problems of observing, hearing or seeing.
  • To question the qualifications of the witness to express opinions or make observations.
  • To impeach the witness by showing conflicting statements or actions.
  • To question the witnesses credibility for truthfulness.
  • To impact the impression of the witness.
  • To discredit the witness because of bias, prejudice, lack of qualifications or other deficiencies.
  • To obtain helpful or damaging admissions.

Lewis Nizer was a famous lawyer years ago who wrote best selling books about his trials. He used to refer to what he called  “the rule of probability.” He would a attempt to determine what was the most probably and the most  likely version a jury would accept as being true and then work around this trial and in his examination of witnesses. This fits the principle of Occam’s Razor: The simplest explanation is the most likely and is a good way to think about your cross examination.

Elizabeth Loftus is a professor of psychology who taught at the University of Washington in Seattle before moving on to other academic institutions. She did considerable research about the testimony and believability of witnesses. One of her findings was that the more detail the witness has about the event they are describing the more credible they seem. She has written:

“why is detail testimony powerful? Jurors and further a witness who provides details has a good memory of the accident or crime. They also seem to think that the witness must have paid close attention to critical aspect of the events. Also, some jurors may simply believe that people who remember details must be telling the truth because it would be unlikely that they would make up seemingly insignificant details.”

Consequently cross examination about the ability to provide details is important. Her research also established that jurors rely upon the degree of confidence of the witness in expressing the testimony. She found that jurors were far more likely to believe eyewitnesses who were confident than those who were not. The impression the witness makes on cross examination is important. Your ability to undermine that confidence is also important. In a case I tried last year the defendant’s lawyer asked the doctor how certain she was about a key fact she testified to. She answered: “Ninety Nine percent.” I found it interesting that some listeners and apparently some jurors put significance on the fact she didn’t say: “One hundred percent.” The impression of confidence counts.

There was a scandal under President Nixon, known as the Watergate scandal. John Connolly had been secretary of the treasury under President. Nixon and was charged with having taken a $10,000 bride to influence the president to raise federal price supports for milk. The principal witness against him was a Jacob Jacobson, a disbarred Texas lawyer. Connolly was represented by the famous Washington DC lawyer Edward Bennett Williams. His cross examination destroyed Jacobson and Connolly was acquitted.

Attorney Michael Tiger set 2nd chair to Williams and did a reenactment of the cross examination at a seminar. It went like this:

Q. Mr. Jacobson you’re a liar aren’t you sir?

A. No I’m not.

Q take a look at this document. It says “statement of Jacob Jacobson” on the top. That you is that?

A yes

Q and that your signature on the bottom?

A yes.

Q and the 1st sentence says: “I lied when I testified before the grand jury,” doesn’t it?

A yes.

Q so you’re a liar, aren’t you?

Very effective technique. Before John Edwards became a politician he was very successful trial lawyer. In his book Four Trials he describes a cross examination of an expert where the expert was evasive and gave long complicated answers. John had a very straight forward question prepared on a poster and asked him for the answer. He wrote on another paper in front of the jury the witnesses long evasive answer. When he was done, John said: “Would it surprise you to learn that several months ago you were asked that same question in a deposition and your answer was….” and John pulled out a large poster with the answer: “Yes, sir.”

When John put up the next simple question he had printed on a poster the witness again gave an evasive lengthy answer again. Once more, John produced a large poster with his answer at the deposition which was “Yes. sir.” The technique was very effective and attention getting for the jury.

Cross examination is a powerful tool and we should learn to use it right. We tend to argue with witnesses and often over insignificant points, at least in the juries mind. We have a habit of boring the jury with details and focusing on issues that aren’t major issues. The jury assumes the witness isn’t perfect and that everyone tends to exaggerate or fudge with the facts, so if it isn’t a major point or if it doesn’t seriously impact the impression the witness is making forget it. Jurors watch TV trials. They think examinations are two or three minutes long with huge dramatic points. They are not prepared for lengthy examinations unless it is interesting and entertaining. Prepare your cross examination. Try it on non lawyers and be prepared to reduce it to an examination which is meaningful to the jury.