by Joseph Horton, MD
I was raised by a pair of criminal lawyers in New Orleans. Being raised by wolves is not intrinsically pleasant, but it does give one a certain sense of being invulnerable to specious attacks—like while being on a witness stand. The inevitable education about courtroom and trial procedure doesn’t hurt either.
Of the two, my mother was the litigator. Tiny in size (I’m 5’3” tall and I dwarfed her), in court she stood, oh, about 11 feet tall, breathed fire, and was bulletproof. It was not a good idea to cross her there—or anywhere else, come to think of it.* One of the things that she drilled into my head was the First and Second Laws of cross-examination.** The First Law is never to ask an opposing witness a question you don’t know how he’s going to answer. The Second Law covers what to do on the very rare instances when it is OK to ask a question you don’t know how they’re going to answer: refer to the First Law.
It always amazes me how many opposing attorneys missed that lecture. Probably half the time I’ve been to trial as an expert witness, I get asked a question that there is no way they can know how I’ll answer. My best guess is that they believe that, since I really am physically small (and gray and nebbish-looking), I can’t possibly help anyone’s case but theirs. Best bet is to look as unassuming as you can, and wait for the opening. (Remember that patience thing?) Then overwhelming force usually stops the attack.
A couple examples:
In asbestos litigation, a feisty woman was cross-examining me. She seemed to be barely able to wait until I answered a question before firing another one at me. What she reminded me of—no big surprise—was my mother, whose shoes she couldn’t have tied.
“Dr. Horton, please tell the jury what is meant by inter-reader variability.”
“Well, it means differences in readings between readings by more than one reader.”
“And what does intra-reader variability mean?”
“It means differences in one reader’s own readings at different times.”
“So wouldn’t you agree that there is a subjective element to reading chest x-rays for asbestosis?”
“Sure.”
“So that means that two fully qualified B-readers *** might disagree on a reading.”
“Yes, that’s a true statement. Two fully qualified B readers might disagree on a reading because the reading is perforce subjective. But whether the patient has the disease is objective. And therefore, if two fully qualified B readers disagree, one of them is wrong.”
“And I suppose you’re usually the one who is right?”
“It usually turns out that way. Yes.”
“No further questions.”
Very short cross, that. Ted and Scot, who had brought me into the case, stared slack-jawed at each other. Afterward they asked me where I had read that. I guess they, too, had trouble believing that a doc could come up with something like that in real time. One did.
Another:
I was being cross-examined by an attorney who was going to show that my use of the term, “pleural asbestosis” was so unkosher as to be impeachable. He showed the height (or depth) of his folly in that the plaintiff had died from a mesothelioma—a really awful malignancy that is roughly 50 (yes: fifty!) times as common in people exposed to asbestos dust. **** He pulled out a pulmonary pathology text, opened it theatrically, and announced…
“Now, Dr. Horton, I show you this pulmonary pathology book. It’s by [I really don’t recall the authors, so we’ll improvise them as] Smith & Wesson. Are you familiar with the book?”
I’m a neuroradiologist, but anyone can learn to read chest x-rays.
“No, I am not.”
“Have you read the book?”
?????????? Would it be possible to have read it but be unfamiliar with it?
“No, I have not.”
“I want to read you a passage from the book and ask whether you agree or disagree with it.”
“OBJECTION!!!! He said he hasn’t read it and that he’s unfamiliar with it.” Tom’s a pretty excitable lawyer.
“I just want to read him a passage and ask whether he agrees with it.”
“SAME OBJECTION !”
“I’m going to allow Mr. K to ask the question. If for any reason, you feel that you cannot answer it, just say so. You do not have to give the reason, just say that you can’t answer it.”
“OK.”
“It says here, [I’m obviously paraphrasing] ‘It is unfortunate that the term asbestosis is used to describe the benign pleural plaques that occur in some patients exposed to asbestos dust. The term should more properly be reserved only for the dose-related interstitial fibrosis that occurs in susceptible individuals.’ ” He closes the book as theatrically as he opened it and smiles smugly. And why shouldn’t he? He’s just read out of a textbook, for Pete’s sake.
“Do you agree with that statement?”
“No, I don’t. But I have to tell you why.” Having said that last part, I know that, until I cede the floor, it’s mine. “Patients exposed to asbestos do indeed get interstitial fibrosis, but they also get a host of other things that are nearly unique to the condition. Included in this is a variety of kinds of cancer, some of which are very rare outside of asbestos exposure.” Not tumors, not malignancy, not mass lesions or mitotic ones that doctors sometimes use to avoid telling patients what they’ve got. Cancer. It’s an ugly word, and I chose it to describe an ugly disease.
“Well, that’s fine, I just wanted to ask whether you agreed….”
“LET HIM ANSWER!!” Tom finally figures out the game.
I kept this up for about 3 or 4 minutes, during which time counselor K. stared straight ahead blew his cheeks out as if imitating a fish, and didn’t blink. His co-counsel, counselor S. sat next to where he was standing, looked down, and slowly shook her head side to side. Wanna guess what the decision was?
Point: The other attorneys usually figure that they’re a helluva lot smarter than you are. You’re a doc, and even if wolves didn’t raise you, you’ve been in stressful situations when people were trying to die and you prevented that from happening. If someone dies, you can’t exactly appeal the decision. You’re in a better position to block an attack than the other lawyer is. Remember that.
* I was a senior at MIT before I bested mom in an argument. And she was less than gracious when it happened. To my mom, losing an argument to anyone was a crisis of biblical proportion. She didn’t seem to have any particular pride that she had raised someone who could do that. To her, she had just lost an argument. Fortunately, my dad was on the phone at the time and after she hung up, agreed that it had finally happened. (I’m not sure he ever did, but he and I were playing for different stakes with her.)
** For those who don’t know, what you question your own witnesses is called direct examination. When you question the other guys’ witnesses, it’s cross-examination. Every dinner table discussion was cross-examination.*** There are A, B, and P readers. B readers are the studs of the game. I did that from 1986-2002. It was a royal, but lucrative, pain in the ass.
**** In fact, one killed the late, great Steve McQueen. He had been in WW II subs, which used large amounts of asbestos for insulation. By report (see Thunder Below!: The USS *Barb* Revolutionizes Submarine Warfare in World War II by Admiral Eugene B. Fluckey), large amounts of asbestos dust were released when depth charges went off near our subs.
