Malpractice Consult: Snappy comebacks to sneaky lawyer questions

March 19, 2001

Snappy comebacks to sneaky lawyer questions

 

Malpractice Consult

Snappy comebacks to sneaky lawyer questions

By Allan E. File, MD

A jury recently found in my favor when I was the defendant in a malpractice trial.* The plaintiff's attorney employed several tricky questions in an attempt to portray me in the worst possible light. But I was able to blunt the plaintiff's attack by keeping calm and providing effective responses that allowed the jurors to see through the lawyer's bluster.

For example, hypothetical questions can trap the unwary physician. The questions are designed to get you to accept the lawyer's premise, and then force a Yes or No response, neither of which will help your case. You can handle such questions by saying, "I would need to actually see such a patient, palpate her, see her facial expression during the examination, and consider how she looked, walked, and acted. I can't answer based on the few facts you've given me."

Here are some other tactics a plaintiff's attorney might employ against you, along with answers that will help you gain control of the situation.

The compound question."Could you ask me those again, one at a time?"

The double-negative question. "Let me restate your question to make sure I understand it."

The leading question. "No, I cannot agree with your statement. Here's why."

The attempt to get you to assume facts that may not be true, such as, "What did you do when it became clear that . . . ?" "I'm not sure it was clear to me at that time."

Attempts to confuse you at deposition, especially when you're tired, by sneaking damaging suppositions into an innocuous sounding question. "May I hear that question again, slowly? And then I need a break."

Rapid-fire questions.Don't let the attorney set the pace. "I haven't finished answering your last question. I need to finish."

The argumentative question."I'm sorry, but I disagree with your premise. The facts here are . . ."

The paraphrasing trick. "Can I hear that back, slowly? No, that is not an accurate summary of what I have said."

"The guidelines are authoritative on this issue, aren't they?"  "They are just that—guidelines. They're not authoritative regarding this patient in this situation."

"The guidelines say 'X,' and you did not follow them, did you?"   "There are reasons I didn't follow them, and they are . . ."

The use of ill-defined terms and overly broad questions. "I'm not clear on what you're asking."

Questions about the ultimate issue in the case: "Wouldn't it be prudent or proper in this situation to . . ." (have called in a consultant, proceeded to surgery, ordered further tests, etc.). Your explanation, prepared in advance with your attorney, should focus on the appropriateness of your actions in your particular situation.

An invitation to speculate."I have no opinion on that, because I would just be guessing."

The "Isn't it possible . . . ?" trick."I don't believe there is any reasonable likelihood of that in this case."

Attempts to provoke you.Remember that a malpractice trial is a form of theater. The truth may not be enough if you don't project the right image to the jury. Keep your cool and understand that provocations are part of a game plan. You must demonstrate to the jury in a professional manner that you were acting in the patient's best interests.

The Detective Columbo gambit: "Just a few more questions. We're almost done."  Attorneys will take advantage of your fatigue and time constraints when your defenses are down. This is when you should really be on your toes.

*See, "My malpractice case was literally a trial by fire," in this issue.

The author is a family physician at the Carle Clinic in Champaign, IL. His attorney, Richard R. Harden, with the firm of Thomas, Mamer & Haughey of Champaign, IL, assisted him in writing this article. A previous version appeared in Carle Selected Papers, Vol. 43, No. 1. This department answers common professional-liability questions. It isn't intended to provide specific legal advice. If you have a question, please submit it to Malpractice Consult, Medical Economics magazine, 5 Paragon Drive, Montvale, NJ 07645-1742. You may also fax your question to 201-722-2688 or send it via e-mail to memalp@medec.com.

 

Allan File. Malpractice Consult. Medical Economics 2001;6:139.