First, there are several basic methods of cross-examinations. The ways you can respond are numerous. No question has a simple answer, and some may be designed to trap you into an answer that may not be wholly true.
There are laws that can restrict what you say. Some states insist that you answer with one of the following: “Yes,” “No,” and “I don’t know.” Other states allow you to “explain further.” Since it is hard to restrict tricky plaintiff questions to a simple yes or no, being able to explain in detail is definitely to your advantage.
If you can’t give explanations, then you might think this a boring and pointless exercise. But a skilled Plaintiff’s attorney can fashion a line of questions that make you agree with them or disagree with them for a specific purpose. You, likely, will not see that purpose until it is too late. Don’t try to anticipate this too much or you will over think and harm your case.
However, don’t make it easy for them either. For instance, if the lawyer says things like “morphine is a really strong medicine,” say, “I can’t answer that with a yes or no unless you let me explain.” In all likelihood, they won’t let you explain. However, the assumption by Plaintiff’s attorney is that you’ll say yes to this seemingly innocuous question. When you don’t answer the way they expect, this will alter their game plan and throw them off a little bit.
If you are allowed to give explanations, it is much easier. In that case you say, “No, it isn’t. There are much stronger medicines than morphine available: Dilaudid, Stadol, Nubain, Fentanyl…” So much in medicine is subjective, and if you can give a good, coherent explanation as to why the “simple proposition” is incorrect, you can disrupt the Plaintiff’s attorney’s quick-fire line of questions. Some attorneys will cut you off before you can finish (often making them look rude). Others will let you continue. Just make sure that whatever you say is helpful. Remember, “Do No Harm” applies to your testimony as well.
The best way to upset an examiner, and the one thing that the questioner never wants to hear from a witness, is a question from the witness. Find a portion of the question asked that you find vague or too general and ask him a question. If the attorney avoids your question, they look bad and evasive. But don’t overdo this or else you will appear obstructive. If the question is harmless, and not a key issue in the case, give a simple answer.
On rare occasions, the cross-examining attorney will ask you to elaborate on an issue. This is your opening to talk and keep talking about that question and your entire defense.
1. Stay cool at all times.
2. Do not parry with the attorney.
3. Look at the jury when answering questions
4. Never sound condescending, even when the attorney has just insulted you (and your intelligence). Your tone of voice is critical. Imagine how the phrase “sure you can” sounds with both a straightforward or sarcastic delivery. It makes all the difference between winning and losing. If the jury thinks you are condescending or sarcastic they will want to find fault against you. If they like you, they are more inclined to believe you.
5. Don’t be fooled by the Plaintiff’s attorney. Use the “three second” rule when answering questions. In other words, always take a little bit of time to carefully consider your answer.
They may try to trick you by using lots of “double negative” questions. For instance, “Did you not leave the scissor inside of Mr. Plaintiff?” If you answer with a simple “yes” you are really saying, “yes, I did not leave the scissor inside…” which actually means “no,” not “yes.” To this type of confusing question your answer should be, “I don’t understand your question,” or “I can’t answer yes or no the way you’ve phrased it.”
6. Don’t answer something you don’t understand. Don’t allow the attorney to get away with their attempts to confuse you.Also, assume that anything the Plaintiff’s attorney gives you to look at on the stand is there to harm you. Even if a diagram looks harmless, chances are there is something there that is taken out of context. Be very careful before agreeing with the attorney regarding anything on that diagram. Also, if they pull out your deposition in an attempt to contradict your testimony, make sure you know it so well that you can refute them with nearby lines that put everything in its proper context.
7. Don’t lie! Rest assured, if you change your testimony from your Deposition it will be used against you. However, if you noticed a way to salvage a poor deposition answer with a “clarification,” be prepared to give your “better” answer in a convincing manner. You will be challenged on it, and you will need to defend yourself in a way that makes you look confident but not arrogant.
8. Don’t fidget. Keep your hands at your lap when you are testifying. If you need to wear glasses during your testimony, then wear them at all times. To put them on and then take them off after each question is annoying and distracting.
Finally, when you are not testifying but are in Court, you will be under scrutiny by the jury. You must not comment, facially or via body language, your approval or disapproval of any witnesses testimony. Do not take notes or write notes to your attorney in front of the jury. If you must, wait until a break in the action. The reason: if you write notes, the jury will see it and wonder if what was going on was damaging to your case. You might call attention to something bad that they would have ignored otherwise. Also, some jurors take offence to your expressions of disapproval, especially with the Plaintiff on the stand.
Hopefully, you will get a Defendant’s verdict. And if you are in court for the verdict, and win, be professional and accept your victory with dignity. After all, the case isn’t technically over until the Plaintiff’s attorney exhausts all appeals. And that could be another multi-step process taking a year or longer if the Plaintiff’s attorney pursues it.
I hope that nobody needs any of this advice. Unfortunately, statistically, most of us will. It is not a sign of weakness to be involved in a lawsuit. In fact, it is a badge of honor that you made it through the process with your sanity intact. Being sued does not make you a bad doctor. Making mistakes does not make you a bad doctor either. It makes you human.
Ilene R. Brenner, MD, is an emergency physician at Piedmont Hospital in Atlanta, Georgia