Cross-Examination of Defense Medical Experts in Traumatic Brain Injury Cases:

A Diligent Search for the Truth

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Conclusion:

Slay the giant, gather the plunder and when all is over, remain humble in your heart, and

move on to the work of helping your next client. If you are fortunate and win, be gracious to the

court, the jury and your opponent above all. Remember, "sometimes you’re the windshield,

sometimes you‘re the bug.“(Dire Straits: song emitted, “The Bug") Effective cross-examination in the

traumatic brain injury case, like any other cross-examination, can only be accomplished when the attorney knows which of the cross-examination goals can be successfully achieved with a particular witness. The goals should be developed and ascertained in advance. The purpose of the cross-examination should be to obtain admissions to achieve specific, pre-determined goals. All attorneys can accomplish a successful cross-examination of witnesses, if he/she first determines what goals can be achieved with the particular witnesses. Cases are not won or lost based on cross-examination. Usually, cases are merely retained on cross-examination.

There are only four main goals in any cross-examination. These four goals are: (1) obtain

admissions from the adverse witness; (2) create an impression of agreement: (3) indicate bias or

prejudice (i.e. the expert witness is usually financially motivated); and, (4) discredit the adverse

witness. Usually the lawyer can only obtain one or two of the goals and not all four. Frequently this

is enough.

Approach cross-examination like a baseball game, understanding, as in trial, that the games

are not usually won ten to zero, but rather five to three.

At the deposition, one should obtain admissions from the witness in such a fashion that the

witness cannot reverse his or her position at trial. Not only should admissions be obtained, but also

those admissions should be locked in for effective use during the trial. The witness must he pinned

and boxed in such a fashion that he cannot escape the admission at trial. If the defense doctor has

made any positive findings, these are key facts that he has admitted and these need to be emphasized

in cross-examination. PowerPoint or enlargements help highlight these admissions. Cross-

examination can demonstrate the medical or psychological validity of the plaintiff's theory.

In my opinion, a “soft" cross-examination is usually best. A hard-edged, threatening cross-

examination, while it may seem rewarding to the lawyer performing it, may cause the jury to

sympathize with the witness. Often, jurors feel that if they were on the stand, the lawyer would

butcher them as well. To the jury, the cross-examination becomes an exercise in “lawyer tricks,"

rather than an effective and respectful cross, neutralizing of the witness. Remember, jurors tend to

identify with the witness and not the lawyer. Jurors look at the trial lawyers' skill of cross-

examination with great awe and fear, as they imagine themselves being cross-examined. Remember,

cross-examination is the art of creating an overall impression about either the lack of trustworthiness

of a witness' testimony, or about an apparent agreement between you and the witness.

Always end the cross-examination on a high note. Always be able to turn your back on the

witness and walk away with your head held high. This compartment will nonverbally communicate

to the jury that you have been successful in your cross-examination, you have shown that the witness

agrees with you, or that the witness’ testimony is untrustworthy.