As a young trial lawyer, I learned early that asking one question too many was a lot worse than asking three questions too few.
The case was a garden variety soft tissue injury case – what some would call “whiplash” – I was defending in Wise County, a place in remote southwest Virginia. We were taking the trial testimony deposition of the treating doctor. On direct examination, the doctor talked a lot about “neck spasms.”
The doctor’s records had no mention of him feeling or observing a spasm, however.
On cross examination I zeroed in on this fact. We talked about subjective symptoms (what the patient reports) and objective one (what the doctor sees). His records only recorded subjective information. The doctor agreed and I was on a roll.
Seeing my chance for a Perry Mason moment, I went in for the kill:
“Doctor, you never actually felt a spasm in this patient’s neck, did you?”
The doctor paused, cocked his head, and looked at me quizzically. Then in his thick accents (almost all the doctors in the area were foreign born and trained), he replied:
“Mr. Rawls, I feel spasm.” Spreading his arms wide, he further declared: “I feel many spasms, BEEG spasms.”
My cross had been quite effective – right up to that last question when I flushed everything down the proverbial toilet.
The plaintiff’s lawyer was smart. He saw this gift for what it was and declined to ask any further questions.
Many lawyers will take depositions that go on for hours. Those attorneys might argue that my approach has the risk of missing helpful information. There is probably an element of validity to that criticism, but I also avoid the risk of diluting the effect of good testimony.
I once inherited a malpractice defense case from another lawyer. With the trial approaching, the insurance company didn’t want her on the case anymore. Reviewing the deposition of the other side’s causation expert, I was pleased to see that my colleague had pretty much gotten him to admit that there was no causal link between the negligence and the harm. I read on. She probed his causation opinions again in an obvious effort to pin him down. The witness’s answers were a bit evasive this time, but he still didn’t make the link. The lawyer went at it again and got essentially the same response. Finally, on round four the expert figured out what the attorney really wanted, and he made the causal link – quite decisively.
Had the lawyer just finished up after the first good question (or even numbers two and three), the plaintiff’s case would have been sunk. Question number four, however, saved the day for the other side.
In trials, I operate similarly. Direct examinations are focused and rarely run more than 45 minutes to an hour. On cross examination, I limit it to issues where I have a reasonable basis to think I can score points. Five to ten minutes is not uncommon.
The minimalist approach is even more important at trial than it is in depositions. Juries have no patience for droning lawyers.
Dealing with testimony, whether in depositions or at trial is one thing, but what about other stuff?
I follow a similar approach. For example, we were recently asked to co-counsel on a case. It’s a straight up failure to diagnose case – and a seemingly strong one too. We drafted a simple complaint. The other lawyer bugged us to add additional claims. We didn’t need them, however. We persuaded her, but it was not all together easy and we had to be kind of firm.
The reality is that adding arguments that you don’t really need usually has the effect of diluting your good points. I have seen that over and over both as a defense lawyer and now as a plaintiffs’ lawyer. Focus on your strong points.
If you must ask whether you should ask a certain question or raise a certain point, you have probably already answered your own inquiry.
I could go on and on about this topic. It’s kind of a passion of mind – and, yes, I know that makes me at best boring and, at worst, weird. Even those who might be inclined to agree with me might say that it’s my experience which enables me to take this approach. There is truth in that. I have lost count of how many cases I have handled, but I know I have tried well over a hundred medical malpractice jury trials – plus a smaller but still substantial number of other types of cases in my early years as a trial lawyer.
On the other hand, I have always had such inclinations. It just struck me as the right way to handle cases and serve clients.
Anyone who has spent any time around litigation attorneys will tell you that my view is very much a minority one. Even some of my colleagues take a more expansive approach. That’s okay – although I do hate sitting across the table from such characters.
As lawyers go, I have always been a bit different – and that doesn’t bother me in the least.
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