We left off in the last article Charlotte Car accident Jury Trial Part 4 talking about the direct examination of the Plaintiff. Today we are going to talk about the cross examination of the plaintiff.
Direct exam is where the plaintiff gets to tell their side of the story. You can think of direct exam as slowly but surely putting the pieces of the puzzle together. The idea of cross examination is to unravel the story, which has been so carefully put together by the plaintiff. There is an advantage with the defense attorney in that they have the ability to ask leading questions. This means they can suggest the answers in their questions, for example, “You had problems with your back prior the car accident, correct?”
I once heard another lawyer describe cross examination as a defense lawyer perched high on a hill holding a rifle. The plaintiff is walking from point A to point B with a bucket of water on his head. Inside the bucket is water. You can consider the water the plaintiff’s case. The defense attorney’s job is to shoot holes in the bucket so some of the water leaks out. If you put enough holes in the bucket the water will drain out and that will be the end of the case. The point is, there doesn’t have to be one main shot, it can be a combination of dozens of small shots.
The defense attorney also has an advantage in that many people sitting on the jury will be skeptical of the plaintiff. They have heard too many “stories” of frivolous lawsuits and ambulance chasers that they are waiting for their suspensions to be confirmed. The defense attorney will play on those suspicions to get a very low or zero judgement.
Cross examination takes much less time then direct examination. Remember the defense attorney only wants to focus on things which hurt the plaintiff’s case. Some common areas of focus are prior injuries, prior accidents, inconsistent statements to doctors, and contributory negligence. As every case is different with different sets of facts it is not possible to go over every type of cross examination question. That said, it is good practice for the plaintiff’s personal injury lawyer to prep the plaintiff for the types of questions the defense attorney will most likely ask.
It is not ethical or good practice to tell a plaintiff how to answer a question. Further, it is not good practice or ethical to tell a plaintiff to lie. Further, if the plaintiff’s lawyer knows that the plaintiff (or any witness) tells a lie on the stand it is the duty of the plaintiff’s lawyer to tell the judge so the statement can be corrected. Many times plaintiffs are worried how one answer can sound compared to another. While this is a legitimate concern there is no valid reason to lie. Many times you are more likely to make a mistake when lying then when telling the truth. Further, juries are not stupid and can tell when a person is not being honest.
The defense counsel enters cross examination trying to score points. Their goal is to, at the least, tarnish up the plaintiff. Obviously they will have to work harder depending on how well the plaintiff did during direct exam. Also, if there is an allegation of contributory negligence they will focus on that. Remember, the plaintiff has to convince all 12 jurors that their version of the accident is correct, and that they were injured. The defense only has to convince one juror that the plaintiff contributed in some way to get a finding of contrib. Even if the defense counsel can’t get contrib it may result in a compromise settlement to keep the value down.
After cross examination the plaintiff’s lawyer can redirect the plaintiff. This can be a good thing depending on whether the defendant scored any points on cross. This cuts both ways since by focusing in on issues raised by the defense counsel you make it more important in the mind of the jury. However, some things must be talked about. This is a judgment call that will be made by the plaintiff’s lawyer. There is no black and white rule. The plaintiff’s lawyer should watch the jury during cross examination to see if there are certain questions or answers that resonate with the jury. If there are they should be followed up on.
Objecting during cross examination questions is also a judgment call. My personal viewpoint is I try to limit objecting during cross examination unless the questions is beyond the pale. Objecting in the minds of many jurors wakes them up to the importance of the defendant’s question. They might wonder why the plaintiff’s lawyer doesn’t want the plaintiff to answer the question. Further, they might get annoyed that the plaintiff’s lawyer is interfering with the flow of the trial. The plaintiff’s lawyer can take care of a number of larger issues before the trial even starts through motions in limine. These pre-trial motions are ruled on by the judge before the trial starts. If either party disobeys the order of the judge, the judge will acts on their own to stop either the answer or the line of questining. As such, it does not appear that the plaintiff’s lawyer is hiding anything from the jury.
A side bar is when the plaintiff’s lawyer and the defendant’s lawyer meet with the judge and the jury can not hear them. I try to avoid them like the plague. The reason is they slow down the trial, the jury is just sitting there getting annoyed and it is a waste of time. I recommend to most new lawyers to try to avoid them as much as possible. The best advice I can give to younger lawyers is to handle most of the issues pre-trial. Of course, not ever event is foreseeable. As such, it is a judgement call for the lawyer to make.
In the next article we will discuss the direct examination of the plaintiff’s doctors. To discuss your case please contact us at your convenience. You will be connected with a Charlotte personal injury attorney who can discuss your case. The consultation is free and there is no fee unless we get money for you.