In law school, there is a famous video called “The Ten Commandments of Cross-Examination”. They are:
- Be brief.
- Short questions, plain words.
- Always ask leading questions.
- Don’t ask a question to which you do not know the answer.
- Listen to the witness’ answers.
- Don’t quarrel with the witness.
- Don’t allow the witness to repeat his direct testimony.
- Don’t permit the witness to explain his answers.
- Don’t ask the “one question too many.”
- Save the ultimate point of your cross for summation
I had two hearings today which perfectly demonstrated these Commandments. In the first, I was cross-examining Dr. McLean, who is a very well respected expert that I use on many of my own cases. I knew that I wasn’t going to change Dr. McLean’s opinion, I just wanted him to agree with a few of the stronger points of my case. I only asked him leading questions that I already knew the answer to. I asked him to concede the points of my case that were the strongest. This has a twofold purpose – if the doctor concedes, it adds credibility to your own medical witness, if he refuses to concede the obvious, it makes him look partisan and ridiculous. Dr. McLean agreed with the few points that I brought up and I ended on that.
In the second case, a less seasoned defense attorney was cross examining my medical expert. Every question he asked was open ended, which only allowed my doctor further chance to explain himself and address any doubts that the ALJ might have had. He also kept trying to push the same point which is futile – you are never going to convince a board certified fellowship trained orthopedic surgeon that he’s been wrong all along. Finally, he allowed my expert to go on and on explaining himself. He made my case more than I did.
Of course, there is always what I like to call “The Overholt Rule”, named after a former ALJ at the Industrial Commission. Judge Overholt taught me early on that “most of the time, the best cross examination is ‘no questions Your Honor.” In other words, let your expert’s opinion stand on its own, don’t give the other expert any further chance to explain himself or defend his position. Good advice.
Chad T. Snow is an attorney who practices in the area of workers compensation in Arizona with offices in Phoenix and Tucson. He can be reached at (602) 532-0700, (520) 647-9000, or through his firm’s website at Snow, Carpio, and Weekley.