The Punisher seeks vengeance for the murder of his family. I am not the punisher. My clients however do want their vengeance. They want someone to be held accountable. Often, while I enjoy the punisher concept, the fumbling, humorous, cross-examination of Vinny in My Cousin Vinny is better at accomplishing the task at hand. What is the task? The task is making the Defendant look so silly in their testimony that even their own lawyer is shaking their head or making notes to have the case settled.

My general evaluation is that insurance companies do not put much stock in their lawyers or their insureds when they know the person is at fault. The big insurers’ practice is for their lawyers to prepare the defendant for a half hour before the deposition. I am happy to be on the other side of that, but to me it is inadequate preparation for a deposition. I spend 2 plus hours with my client days in advance of a deposition to understand what they are going to say and how they are going to say it and generally to put them at ease.

It is rare indeed that a defendant will admit that they caused a crash, failed to make their property safe etc. When a defendant does admit fault, it short circuits the deposition and almost allows it to end with that admission. I find it refreshing, but unexpected.

Preparing to cross-examine a defendant usually begins for me with assembling the photos, police reports, hospital records of my client, and any statements taken by the insurer. Even with a tiny bit of information, I will know what the weather was like, what the area was like, what a reasonable person concerned about others would have done etc. A lot of depositions are fact finding mixed with cross-examination. So, while it may not be significant during the deposition, stating that it was snowing or dry may have significance down the road. Or, the defendant saying that they don’t recall a lot of information, but only recall bad things for your client suggests that they have a selective memory and usually looks silly.

Often, photos tell a thousand words. Even if they are harmless looking, they provide a lot of facts about what happened, where the crash occurred, how bad the situation was etc. I finished two cases recently where my clients’ cars ended up in a field or nearly crashing into a restaurant. In both cases, the defendant had to admit that their actions had caused my clients’ cars to leave the roadway.

Preparing to cross-examine a defense expert witness is part of every case that approaches trial. For most of the case, all that I have from the defense expert is a three-page letter relating the expert’s opinions and his curriculum vitae or resume. That is not much information to go on. A typical letter from a typical defense expert says that the expert reviewed the patient’s records, met with the patient, and concluded that there was no connection between the incident and the patient’s injury, and that the patient is fully healed or some variation on that theme.

Clients are always astounded that defense experts will offer such an opinion, but it is merely a money-making operation for the doctors. Often, the experts in auto cases make a lot of money reviewing hundreds of cases for insurers and have their own private practices, where they see patients. They assume that most cases will settle without the need for their testimony. But, the combination of overly busy experts with no real preparation makes the defense expert an easier target than one would expect.

Everyday personal injury cases are generally not as high stakes for the defense as other larger cases. So, for example, I will see a lower grade of expert in an auto case than I will see in a medical malpractice case. That is just the reality. The cases simply do not matter to the expert as much as they matter to me or my client. For my client, it’s a question of money to compensate for their injuries. For me, I usually have $10,000 or more on the line if I lose the case.

Like most lawyers, I have had good days with defense experts and bad ones. The best cross-examinations are when the expert’s report simply does not align with the facts. I find that a timeline is often the best offense against a defense expert. (Here is an example of a good cross of an overused expert). Good days are when the expert admits his opinion is wrong or was missing key information. Bad days are when the expert does well and I make no headway. Once I had a doctor tell me that he was not going to explain the shoulder anatomy to me. I thought that it looked arrogant, but the jury accepted what he was saying. You know that you have done a good job cross-examining an expert when the defense lawyer asks if they can refer cases to you in the future.

What are the keys to expert cross-examination? First, preparation goes without saying as that is just part of being a lawyer. Second, I like to have read 2 or 3 prior depositions that the expert has given, just to get a feel for their manner. I had one expert who when asked why he was giving opinions on surgery, but no longer practiced surgery always said, “well my wife is being treated for breast cancer.” He had said this over and over for years and nobody called him on it until I stopped him before he said it in my deposition. Third, collateral source information is key. Just collect it from old depositions. What is collateral source? It is basically information irrelevant to the case, but relevant to the bias of the expert. So, really, it involves how much money the doctor makes from testifying and how many depositions they give and how much of their practice it involves. Often, the specialties such as primary care, neurology, and other low paying doctoring practitioners will supplement their practice income with expert work and will say pretty much anything. The surgeons of the world make more money practicing medicine and are less subject to this cross, but are often more quick to snap when caught on cross. Nevertheless, if I am not doing great on cross, I will always end with asking the doctor if they have made a million dollars doing expert work. Most will agree that they have. Sometimes, I start with that approach if they are overused or good experts. Fourth, one of the few pieces of information the expert provides is their CV or resume. This usually lists the professional groups they are involved with. Most surgeons are members of AAOS, the American Academy of Orthopaedic Surgeons. AAOS publishes a lot of literature that can be used to cross the expert when they start giving opinions that are simply off the reservation or contrary to AAOS.

So, as you can see, there is a lot of work to do to cross even the most broken-down expert. Once upon a time, a lawyer in New York City I worked for was so annoyed with repeatedly seeing the same specialist in high profile malpractice cases that he paid our investigator to simply sit and video whether the expert was actually seeing patients or doing expert work. It turned out that the only people seeing the doctor were the Fed Ex and UPS drivers dropping off records from lawyers. That made for good cross! I generally know I have done a good job if the expert’s testimony is bordering on the laughable. That’s my cousin vinny test.