In 2009, Paul Simonson strengthened his position as a leading New York medical malpractice attorney by providing advice on preparing for and executing a successful cross-examination of the defendant’s expert during a medical malpractice trial which was published by the New York State Bar Association in Medical Malpractice in New York, Third Edition. The fact that Simonson was asked to author this chapter speaks to his expertise as a New York medical malpractice attorney, as well as the high esteem his peers have for his experience as a trial attorney.
For an attorney preparing for a medical malpractice trial or for a plaintiff who wants to understand the part of a trial consisting of the cross-examination of the defendant’s expert witnesses, Simonson’s chapter is very informative. In this piece, we highlight the methods he recommends for preparing for the cross-examination. In the full text of the chapter found here, Simonson also shares his insights into conducting a successful cross-examination.
To be truly effective during cross-examination of the defendant’s expert in a New York medical malpractice case, Simonson advises a thorough understanding of the underlying medicine. With a good basic understanding of medicine, you will be generally prepared to handle whatever occurs in the courtroom, but with a complete understanding of the specific medicine upon which the case is based, you’ll be able to keep the expert focused on the issue at hand, control the cross-examination, and build your credibility with the jury. For Simonson, this rule of thorough preparation applies for all areas of medical malpractice, including cerebral palsy, other birth injuries, gastric bypass malpractice, anesthesia malpractice, and failure to diagnose cancer.
In addition to studying the underlying medicine, Simonson suggests studying cross-examination transcripts, especially those of experienced trial lawyers you admire. You can learn a lot from the language and linguistic patterns of others. However, he recommends absorbing and adapting what has worked for others and making it your own, not copying their style. A jury will be able to see right through you if you’re not authentic.
A third crucial area of knowledge is the expert him or herself. Upon receiving the required disclosure, you can find out about the expert using the ABMS Medical Specialists’ database. Knowing the medical school attended, training specialties, board certifications, jurisdiction of licensure and areas of expertise can help you understand the expert and prepare your own expert cross-examination.
Especially important is exploring potential bias and impeachment sources. Simonson recommends doing a thorough internet search to investigate the witness’s background, experience and perspectives. Find out if he has been a defendant in a malpractice case, if he has a personal relationship with the defendant, or if he has written or made statements that could be used as admissions. After all, discrediting an expert with his own words can be very powerful.
Preparing for a successful cross-examination goes well beyond knowing about the expert and underlying medicine; it requires careful planning and strategizing. A first step is to develop a script that lists all of the questions you definitely want to ask the witness in the most effective order for undermining the defense’s position and steadily steering the jury to have doubts about the basic tenets of the expert’s testimony. The script should also include relevant notes from prior court or deposition testimony.
Rather than stifling you in the courtroom, a well prepared script allows you the freedom to follow an expert’s answer in whatever direction seems warranted and then easily get back on track. It also allows you to formulate precise, shrewd questions and have a well-planned line of attack with an orderly progression to an anticipated conclusion. According to Simonson, cross-examination is “akin to a trade like masonry, in which you lay one brick at a time, spread the right amount of mortar to connect it to the next brick and keep going until you have a solid structure that can withstand a barrage of assaults without toppling.”
A well prepared script is still only half the battle; a good delivery is essential for achieving the effect you want. Simonson suggests practicing changes in tone and volume so you can use your voice as a tool in the courtroom. He also recommends making sure your notes are legible and well organized so you can use them effectively during the cross-examination.
If you think you have a medical malpractice case and want to talk with the attorney the New York Bar Association considers an expert, call Paul Simonson at 1.800.405.7783 or contact his law firm online. He has forty years of experience in successfully representing victims of medical malpractice in New York and New Jersey.