Trial Cross of a defense neurosurgeon: using paper cups, water and a raincoat
Prologue: Plaintiff had back surgery. She had returned to work only just the past week, when she was hit hard by a bad driver. Ultimately she needed a second surgery due to the crash. The bad driver admitted fault and her company paid. But she didn't have enough insurance. So our client, Ms. P made a claim under her Underinsured Motorist Policy. Which is what you are supposed to do. Allstate, her insurance company, required her to sue them as that is what the UIM policy says has to happen. Ms. P sued Allstate. Then went thru Mandatory Arbitration. But Allstate didn't like the verdict so they appealed it and forced a jury trial. Their main witness was Dr. Blue, a retired neurosurgeon. During the direct exam, he tells the jury that Ms. P's additional problems after the crash, are related to her pre-existing conditions that had been mildly strained. He says her second surgery wasn't related to the crash.
This is my trial diary excerpt from March 2013.
As direct winds down, I’m thinking wow. He’s really good. And then it is time for cross.
Us lawyers spend a lot of time preparing for cross, thinking about cross, going to classes to learn about cross, and basically obsessing about cross and scaring ourselves to death over the prospect. But here is the truth. There is no one perfect way to do cross that works on all expert witnesses. There is no magic bullet that will work every time. Did I read his report in advance – yes. Did I read a few depositions he had given before yes (thanks Ben Wells). Did I make some notes – yes. Do I know the chapter approach – yes. Do I know the rules approach – yes. Have I gone to reptile – yes.
But in truth, I do not know what I’m going to do in cross until Jodi sits down and it is my turn. Being able to be in the moment. Not focusing on obscure minutiae. Being able to figure out how the message can be conveyed to the jury as quickly and powerfully as possible. This is what is needed in cross. At least for me.
So I sit there as Jodi [defense lawyer] returns to her seat and this is what am thinking.
WWDDDD. What Would Drop Dead Diva Do. (See the prior blog). This is no joke. This is very serious. Love the way she sashays up to the witness and comes up with a spur of the moment perfect cross that wins the entire case. Because it is just so perfect. Just takes her a few questions. Never involves going back and rehashing everything on her terms. Never boring. And you are always cheering when she’s done.
I don’t want Dr. B to talk any longer than absolutely essential. He is too good. Want him gone.
So instead of talking about the almost million dollars he’s made in the past three years working 15 to 20 hours a week almost entirely for insurance companies, I start off with something completely different. (Though we do talk about the big bucks a bit later). I start where Jodi leaves off – destroying our causation.
I need a demonstrative aid. Have been looking around courtroom. Thinking through the tissue box and am pretty sure that is where am going to go. And then something better strikes me. Literally as am walking up to the bar.
Turn around. Get my rain coat off chair. Get three empty paper cups from our table. Fill one cup with water. Spread coat on top of the bar below the witness. Place the cups on them. And say hello.
Without being mean to him, lighting into him, or picking at him, this is how we begin.
Pour a little water into one cup and hold it up.
Dr. this cup is a vertebrae and I’ve filled it with fluid. He corrects me because I meant to say it was a disc. Oh silly me you are right (as usual). Yes, this is a disc filled with fluid. Now let’s assume this is a perfect disc of a young person under the age of 35 who has no degenerative disc disease. If I subject this disc to trauma…and here I try to rip it. But it is a tough little sucker and I can’t.
Nick the clerk hands me scissors. I make a teeny cut, hold it up again. And rip it all the way to the bottom. The water drops onto my coat.
So in this case, is it fair to say that the sole cause of the disc tearing is the trauma I just caused.
Dr. B says yes. Inside he’s thinking, is she just playing dumb or is she…
I hold up the second cup and pour in some water. Make a cut at the top with Nick’s scissors.
Now, Dr. this time the disc is that of a person like you or I. Over the age of 35 with degenerative disc disease (ddd – hey same initials as DDD – no wonder this is going to work!). Do you follow me and he says yes.
I rip the cup to the bottom and the water falls onto my coat.
Am I correct that even though the disc was already torn a little bit from ddd, it could still be injured further if subjected to trauma. He agrees.
I hold up the third and final cup. Make a cut at the top.
Now Dr. again this is a disc with DDD. I then rip the cup most but not quite all of the way. The water does not fall out.
If a person has ddd that has led to a preexisting partial tear that isn’t causing the fluid to leak out, but a few months or in this case six months later, the tear finally gives way…and then I rip the cup the rest of the way and the water splashes to join the rest of the lake on my coat. Does that mean that the trauma had nothing to do with causing that big tear.
He doesn’t quite get it so I have to do it again, a little better this time.
He has to agree with what I’m saying. Because after all, the proof is on the torn up cups and my poor coat.
I finish with cross. We take a break. And Jodi spends the time with him figuring out how to poo poo all this.
When the jury comes back, the redirect is well rehearsed. Jody and Dr. J do a fine mockery of my little misguided attempt at an exhibition. Confident they have shamed me to pieces. Yet, on recross, instead of shying away from it. Well, I think WWDDDD. Pick up my sodden coat. Sashay back up there. Plop it back on the bar. Redo cup number three all over again. And again, he has to agree.
There are a few more things that happen. Text Cristina who has come to watch: Did that work. She texts back: I think so. You probably saved the whole case there.
Here is the transcript of Dr. Blue's cross, redirect and recross, along with my little comments: