One Question Too Many (Part 2)

July 23, 2012 Cross-Examination

I love collecting examples of this all too human foible. Let’s face reality, we all violate this rule. We just can’t help it. It is a compulsion. We know it is wrong, but like most addicts we figure we can get away with it. Despite that they are fun to collect because, so long as it is not you asking the fatal question, they are very funny.

I came across the following transcript from the website of Walter Simpson. It comes from a medical malpractice trial where an obstetrician used forceps in the delivery of a baby with disastrous results. The forceps caused brain and nerve damage to the baby because, according to the complaint, the doctor used excessive force.

A delivery room nurse testified that based on her observations the doctor had used excessive force in the delivery. The defense lawyer did a good job eliciting testimony on the difficulty of delivering some babies and the occasional necessity of using forceps. He also established that the baby had to be delivered quickly after the baby’s head had crowned.

Here is the rest of the cross-examination:

Q: Nurse Nelson, you have testified that Dr. Simon used excessive force in applying the forceps and pulling on the baby in an attempt to deliver the child, correct?
A: Yes, sir.
Q: You would agree with me that the word “ excessive ” is a subjective word that may mean different things to different people, right?
A: I suppose that is true.
Q: You did not have the forceps in your hands so that you could feel the amount of force being applied by Dr. Simon, isn’t that correct?
A: No, I didn ’ t.
Q: You would agree with me that the doctor must apply some force with the forceps in order to accomplish the delivery, wouldn’t you?
A: Yes, that is true.

Stop. There is no need to ask anymore questions. The cross-examination was excellent right up to here. But the lawyer simply couldn’t help himself and had to make the final point with this fatal question :

Q: How could you possibly say then, Nurse Nelson, that Dr. Simon used excessive force in using the forceps to assist delivery?
A: Because he put his right foot up on the rail of the bed and leaned backwards as he was pulling on the baby’s head.

The “one question too many ” should have been saved until the final argument. The lawyer could have ended on a high note, but instead solicited a devastating answer and injected evidence that the plaintiff’s lawyer had not developed on direct examination.

But that is not the worse part of this. The jury got a clear mental picture in their minds of this doctor pulling on the baby’s head like he was in a tug of war. This is a graphic, sticky image that no one was going to forget.

Time to settle.