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Do I Put the Doctor on the Witness Stand?

I had a interesting debate with a very knowledgeable and well respected colleague recently about whether it was wise for the plaintiff to call the defendant doctor as a witness during the plaintiff's case-in-chief. He said yes, I said no.

He cited two reasons for his point of view. First, he thought it would put the doctor on the defensive from the outset since his initial exposure to the jury would be during cross-examination. Second, he said that in the event the defense had come up with any new strategies in their case since the time of the doctor's deposition, they might be revealed by the doctor's answers to plaintiff's questions, in which event the plaintiff would still have an opportunity to respond to those new issues when through their expert.

While I appreciate my friend's points, I firmly believe that, except in the most rare circumstances, it is a big mistake for the plaintiff to put the defense doctor on the stand during his case-in-chief. Here is my thinking.

First of all, to the extent that you need certain facts in the record to support your expert's opinion, you undoubtedly already solicited that testimony at the doctor's deposition, and therefore you can simply read the relevant portions into the record. That however is a minor point. The real reason that I don't like to put the doctor on the stand is that it disrupts the rhythm in my case and removes some of the "punch" from my argument on liability. How so? As far as a rhythm is concerned, when we call witnesses to the stand on direct examination they normally are people whom we have met and prepared prior to trial. These witnesses try to follow our lead and answer to our questions favorably. When the defendant gets on the stand, however, he is like a horse that doesn't want to respond to the hands of the jockey, i.e. he has his own course in mind and his only objective is to make the ride as disruptive as possible. In that circumstance, the rhythm of the questioning invariably breaks down, e.g. the doctor will ask for clarifications on questions when none are needed; he will give evasive answers which require us to repeat questions; and in general he will simply take us places we don't want to go.

In addition to disrupting our rhythm, the substance of the doctor's testimony will almost invariably discredit our theory of liability. Lawyers who think that their questioning skills will keep the defense doctor sufficiently in check to alleviate this concern are either naive or have a little too much ego on board. I have yet to see any case on liability that looked better after the defense doctor was called during the plaintiffs case-in-chief. The best one can hope for is that the case is no weaker after the doctor has testified.

Another reason I don't like to call the doctor is that the trial judge will subconsciously give the defense lawyer a little more latitude to utilize leading questions when he examines the doctor. Don't ask me why, but there is just something about being the second person to question a witness that causes a judge to grant a little more leeway to lead the witness. By taking advantage of this situation, a skillful defense lawyer may be able to extract answers from his client that he otherwise would not have been able to coax out of him if he had called the doctor during his own case-in-chief.

Finally, if the plaintiff calls the defendant to the stand that means the doctor is going to testify twice during the trial, and I simply don't like that situation. Each time the doctor faces the jury, it is an opportunity for him to reinforce his view of the case. While the plaintiff's lawyer will get to cross examine the doctor twice, anyone who perceives some overall benefit from that circumstance is either inexperienced or has an inflated view of his own capabilities.

All things considered, I say let the defense lawyer call his doctor to the stand, don't do it for him.

John Gismondi on G+

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