Steps in preparing for cross examination

Someone commented that for the inexperienced cross examination is a real challenge. Let me suggest one way to prepare for cross examination. This is not a description of how to organize the material you create because I’ve written about that previously. /bcCreatePost.aspx?id=2101419 This is a simple way to think about getting ready for cross examination. These concepts apply generally to any cross examination but to keep it simple, let’s take the example of a doctor hired by the insurance company to examine your client and who has written a report finding your client isn’t hurt or had pre existing problems not related to the accident or the like. Here’s how I would approach preparing for cross examination.

1. Collateral issues of bias Since the sole issue for the jury is the credibility of the witness the single most important thing you can explore is bias, express or implied. Nothing is more important. Here are the areas to explore. Note, while I use "he" it should be applied as "he or she."

(1) Are the charges reasonable? What percentage of income does he make doing this kind of work vs treating patients

(2) What percentage of his time is spent on this kind of legal work vs treating patients

(3) Does he advertise in legal journals or have a website promoting his legal work

(4) What percentage of the time does he does this work for defendants vs plaintiffs

(5) Has he ever testified for a plaintiff? How many times? How often for a defendant?

(6) Same question regarding depositions and written reports

(7) Has he done this for the same defense firm or lawyer before? How many times

(8) What was he paid for the examination

(9) What charges for writing the report? For deposition? For trial testimony?

2. Opportunity to observe Unlike the treating doctors this witness saw the patient one time and not for very long. Find out:

(1) How long did the information gathering (history) take?

(2) How long did you personally physically examine the patient?

(3) You saw the patient only one time & that was because you were paid by defendant to do so, not because you were providing treatment?

(4) Find out what records or X-rays or studies or hospital records he had when he did the examination. Was he fully informed at the time?

3. Helpful findings from client Look at the report he wrote. It will generally have a history i.e. things the patient told the doctor or medical facts provided in medical records. Look through these for helpful statements to ask about. For example: "Joe told you that whenever he turns his head he feels a grinding sensation didn’t he?" Ask about these because it repeats the complaints the client made to the doctor.

4. Helpful physical findings Usually there will be a section describing the findings the doctor made on physical examination. Ask about these. For example: "You found that when you asked Joe to bend forward he was very limited, didn’t you." Ask about all of these affirmative findings as well. 

5. Helpful treatment records Ask the doctor about any hospital or medical records he may have been provided. Go through these for helpful findings and ask the doctor about these. For example: "You knew that the admission record at the hospital when he was taken there described him as a man in acute neck and back pain, didn’t you? Go through these entries as well.

6. Who is in a Better position to know? This is a very important area to ask about because the doctor is in an awkward position of second guessing the treating doctor. They will use a variety of excuses for this such as the treating doctor is too close to the situation and they are in a position to be objective. But, when it comes right down to it, this doctor claims on the basis of one examination he or she knows best and the treating doctor is really billing for unnecessary care. Draw the lines sharply in this area

(1) Do you know the treating doctor, Dr.______? Do you have any reason to think he is anything other then a qualified and dedicated physician?

(2) Have you ever discussed his patient, Joe, with him to get his views

(3) Did you know Dr. ______ has been treating patient for over a year, seeing Joe regularly? But, you only saw Joe once didn’t you and that was for less then one hour?

(4) You know that Dr._____ diagnoses is that Joe has a permanent injury to his neck from the collision? But you, on the basis of one visit, think he is providing unnecessary treatment?

7. Never talked to friends, family or employer The other area the doctor is very vulnerable is that of employers, friends and family who spend considerable time with Joe and have observed his injuries. The doctor has never talked to them and knows nothing about their observations. Pick as many examples as you know witnesses have or will testify to and ask him about them.

(1) Have you ever talked with Joe’s employer and fellow workers? So, you don’t know that they all say Joe is not able to do his work since the collision the way he used to? Wouldn’t that be something you would want to know if you are making an objective analysis?

(2) Did you know that his wife and children say that since the collision he has had continual back and neck pain which keep him from doing work around the house he used to do?

8. Not a treating doctor Often these examiners will imply that they have the plaintiff’s best interests at heart and are trying to give helpful treatment advice. You need to make clear the role of the doctor

(1) Joe did not see you on referral from his own doctor, did he

(2) Joe didn’t come to you asking that you undertake his treatment did he

(3) The only reason Joe saw you was because the law allows the defendant to send as plaintiff to a doctor they hire

(4) Your only role is to examine Joe at the request of the defendant

(5) You won’t be providing any treatment to Joe when the case is over

(6) The defense lawyer and you will be moving on to other things leaving Joe in treatment with his doctor, Dr __________

These are some rough ideas that occur to me as I think about cross examination, but the principles remain the same. They are bias, real or implied, ability to form opinion and role. If you have a police officer to cross examine you generally follow the same process. Examine the investigation report for helpful findings, explore bias and ability to see, observe and form opinions. The specifics will vary from case to case. I hope this is helpful.

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