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Should an Attorney Challenge the Medical Expert during the Trial

Jul 7, 2015 | Medical Malpractice

Pushing the buttons of a medical expert could serve the attorney well at a medical malpractice trial, but there are also chances that this strategy might misfire.

Aggressively Targeting the Defense’s Medical Expert

During a medical malpractice trial, the defense will put up its own medical expert witness and the plaintiff’s lawyer will have the opportunity to cross-examine this witness. The lawyer can press the doctor’s buttons during the cross-examination. The lawyer needs to ask the doctor, penetrating questions in order to see how he reacts under pressure, and secondly, the lawyer needs to get to the crux of the matter.

The plaintiff’s lawyer must find out if this doctor is coming in as a biased witness or is he a truly objective witness who is giving information to the jury cleanly and fairly about what happened to the victim and why.

Collateral Issues

There will be instances when defense’s expert medical witness could be offended by the lawyer’s sharp questioning tactics. He may feel such questions to be inappropriate. Such questions may in fact have actually nothing to do with the key issues of the case. The questions could be about testimonies given by the doctor in past cases, or it could be about the amount of money the doctor is earning by providing his testimony.

These details, even though they do not have bearing on the present case, are known as collateral issues, and the lawyer has the right to ask such questions. In fact, he could be construed as derelict if he did not.

Painting a Picture

The lawyer is entitled to probe and determine what the doctor has testified to in other cases, and how much he earns through offering this court presence. With this line of questioning, the jury will receive a taste of the big picture pertaining to this expert witness’s testimony.

Strategy can Backfire

However, this strategy can backfire. The lawyer can create so much animosity towards the doctor that the jury at some point might feel as to why this lawyer is treating the doctor this way. This doctor is helping bring this case to a resolution and what did this person do to deserve this type of disdain? The jury might feel that the doctor has the credentials to be an expert, and so he should be treated with respect and it is OK to ask tough questions but the attorney should mend their tone while doing it.

If the lawyer goes too far with the expert witness, the attorney could be shooting themselves in the foot for these unnecessary and unwarranted hard charging tactics. The jury could sympathize with the other side.

Therefore, if the plaintiff’s lawyer chooses to use this strategy, he will have to be careful and tread a fine line. The lawyer will have to recognize where the boundaries are since he does want to overstep them. Now if the attorney feels he has opened up a hole in the other side’s case and witness, then he has every right to exploit.

Making a Determination

The goal here for the plaintiff’s lawyer is to determine how much financial incentive this doctor has in showing up to testify for the other side and how often this doctor does this? Is this a large part of this doctor’s livelihood? Also, if this doctor has given testimony on a past case that is in conflict with what he is saying now, the court has the right to know this.

So when the attorney decides to go after this expert witness there are certain goals he wants to achieve. He will have to be aware of the boundaries, and also make sure the information he is seeking to uncover is going to make the necessary impact with the jury.