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Is Your Lawyer Vouching for Doctor’s Credibility by Calling Him to the Stand

Mar 30, 2015 | Medical Malpractice

You have sued a doctor in a medical malpractice case in New York, and your lawyer is going to put the doctor on the witness stand at trial. The mere fact that your lawyer has called this witness to the stand, does it mean that your lawyer is vouching for this doctor’s credibility?

Typical Scenario

Typically, when a lawyer puts a witness on the stand, he inherently is telling the jury that he is vouching for this witness’s credibility. This means, the lawyer can typically ask only open-ended questions known as a direct examination, and he cannot ask any other type of questions. Secondly, when the lawyer is putting a witness on the stand to support his client’s claim, he is basically telling the jury that this witness is favorable to his side, and he is vouching for the witness’s credibility.

It is Different When the Defendant is the Witness

Nevertheless, many times, in a medical malpractice case, the plaintiff’s lawyer will have to call the doctor to the stand, who is being sued. This means the defendant will be called to the witness stand. However, something interesting happens here. Since the defendant is unfavorable and antagonistic towards the plaintiff’s claims, he will have a different position and a different agenda.

Something unusual happens, as the plaintiff’s lawyer will not be vouching for this witness’s credibility. Instead, the plaintiff’s lawyer has to call this particular witness, this doctor, to the witness stand, because he needs to establish a number of things to the case. The plaintiff’s lawyer has to establish, by questioning this witness:

· What is the expected standard of care for the particular procedure

· What did the doctor do and why

Now, even though the plaintiff’s lawyer has called this doctor to the stand, he no longer has to ask this witness open-ended questions. The lawyer need not ask questions like "Doctor, tell us what you did". Instead, the lawyer can ask leading questions, which will enable him to control the witness, and he can derive information that he specifically wants the jury to hear.

Obviously, the defense attorney will have the opportunity to question his client, who is the doctor, and conduct direct examination, asking open-ended questions. This will give the doctor, the opportunity to explain his side of the story in detail.

However, when the plaintiff’s lawyer calls the doctor to the witness stand, he is not vouching for his credibility. Instead, he is showing to the jury that this witness is antagonistic, and is a sort of hostile witness to his client’s claim. The lawyer is therefore permitted to ask this witness, cross-examining type of questions, which require a yes, no, or I don’t know or remember, type of answers. This way, the jury will have the opportunity to judge whether this witness’s testimony is truly credible.