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Can an attorney ask an expert witness to show his notes during trial?

May 11, 2015 | Medical Malpractice

Have You Brought Your Notes Along?

In a medical malpractice trial, the defense has just finished putting on their medical expert, and now it is the turn of your attorney to question this doctor in a cross-examination. One of the first series of questions your lawyer will ask this witness is whether he has brought any records or notes along with him.

Suppose the witness has not brought any of his notes, and if your lawyer asks him the reason, he is likely to say that the defense attorney had asked him not to since all the records will be available in court and he could refer to them any time he wanted. Therefore, it is best for your lawyer not to ask such a question based on the fact that he knows what the doctor is going to say.

Line of Questioning to Show the Doctor is Lying

Instead, your lawyer can show to the jury that this doctor clearly would have made notes. It can be achieved by this line of questioning:

· Doctor is it not true that you see many patients during the course of the week?

· Do you see maybe 100 to 150 patients a week?

· Do you see patients four or five days of the week?

· You reviewed these records three years ago, are you saying that you did not review these records since that time until yesterday?

· Doctor what did you use to refresh your memory?

· Are you saying that you went through 1,000 pages of records in a single evening?

· How long did it take you, and did you make any notes yesterday?

This line of questioning is meant to show to the jury that it is highly unlikely that the doctor spent so much time reviewing all these medical records without making any notes.

· Doctor did the defense attorney send any records to you, to review?

· Did the attorney include a cover letter along with these records?

The doctor might even start lying about receiving and reading the cover letter. Your lawyer can put him on the spot by showing the jury; he had not only not read any of the records but also had no idea about the cover letter. In fact, the cover letter might have just mentioned that he had to review these records.

The whole point of this line of questioning is to show to the jury that the doctor could not have possibly gone through such huge amount of records. While absence of notes might not conclusively show to the jury whether the expert witness is lying, the above line of questioning will clearly show that it is a possibility.

Creating that Idea of Doubt

Therefore, it will not only create a doubt in the minds of the jurors, but also put the credibility of the doctor in question since he seems to be lying about reviewing the records. Presence or absence of notes may not make much of a difference, but it is important to show to the jury that the expert witness could be lying about reviewing the records.