Steven Babitsky, Esq.

Counsel may, during cross-examination of an expert witness, take a statement out of context before the jury. The expert needs to be ready to take advantage of this opportunity.

Here is how three expert witnesses explained how they effectively dealt with their opportunity.

1. “The defense attorney asked me to comment on the opinion of defense’s medical expert who stated that reflex sympathetic dystrophy lasted no more than 16 years. Defense expert cited Bonica’s The Management of Pain as his reference.

Since I had studied this reference as part of my preparation, I was familiar with the specific reference. To paraphrase my answer since I can’t remember it verbatim:

“Dr. _________ did not finish reading his reference. While Dr. Mitchell did describe a patient with causalgaia that had persisted for 16 years, the same paragraph, which is found by the way on page 225 of volume 1 of Bonica’s book, states that many of Dr. Mitchell’s patients went on to be cared for by Dr. Mitchell’s son and their disease persisted for many years.”

This answer had a great impact on the jury and, in fact, deflated defense counsel’s sails considerably. As a matter of fact, I had on the desk in front of me a photocopy of the exact chapter including the page numbers.”

2. “After I was questioned by a leading text on random sampling, I asked to see the book and read the lines quoted.

Reading the next few lines, I noted the qualification to the bald statement that had been quoted.”


3. Case involved damages of approximately $40 million which I had established during discovery in the prior year. Defendant’s counsel was examining me after completion of direct testimony and quoted some phrase I used during deposition testimony to make it appear that I did not support the conclusions set forth in the damages case. She read from a transcript taken the second day of my 5 day deposition and stopped the quotation about halfway through. It’s hard to remember what one said throughout a 5 day deposition but I was sure I had not said anything that would undermine the case. So I asked to hold the transcript she had and “re-read” it for myself. Sure enough she had intended to mislead by stopping before my statement was concluded. I read the entire deposition answer slowly out loud, clearly setting forth all of what I had said. In polling the jury after the case was done, we learned that defense counsels’ attempt to trick me was a key factor in the jury’s favorable decision for our client.