During direct exam, the way questions are phrased can often make or break the testimony itself. And in analyzing how he and Dan Huff cleared a pair of doctors in an $8 million med mal trial, Huff Powell & Bailey's Scott Bailey detailed the "mock cross-exam" approach that he uses on direct to build credibility and undercut a cross.
"I always think about, if I’m a juror, what’s going to bother me about this witness’s testimony. And I want to answer those questions that the jurors might have, and I want to do it in such a way where I might ask it in the same way they’d ask my client," Bailey said of how he questions witnesses. "And I want to make sure that [my client's] being tested by me on direct... almost like kind of a mock cross-examination.”
Bailey used the technique in questioning his client, Dr. William Bottoms, a radiologist accused of failing to properly follow up on cyst-like growths found in the kidneys of one of his patients, who was diagnosed years later with ultimately fatal kidney cancer.
During his direct of Bottoms, in which the doctor walked jurors through images taken of Moradov's kidneys, Bailey took a devil's advocate approach with key questions. At one point, for example, Bailey said to Bottoms, "We heard this image has a distorted lobulation, which sounds like something to worry about."
The addition of "sounds like something to worry about," specifically addressed what jurors may have been thinking themselves, and allowed Bottoms to respond directly, explaining why he concluded the growth wasn't worrisome.
"I want to get those things out there before the opposing lawyer has a chance to do that on cross," Bailey said. "And if I can do it in such a way that's challenging my own witness, then I think it builds credibility, and I think it alleviates some... concerns that the jurors might have against our case."
Bailey broke down his approach to questioning as part of an in-depth interview where he and Huff, who represented urologist involved in the case, analyzed the trial and the courtroom techniques that have earned each of them CVN Georgia Defense Attorney of the Year honors.
Included in the interview you'll learn their views on eliminating "dangerous leaders" during voir dire, the ideal length of openings, incorporating demonstratives during testimony, and more.
It's part of CVN Discovery, an ever-expanding collection featuring hours of webinars and interviews from the nation's top attorneys on both sides of the courtroom. It's a deep dive into the proven techniques that win trials.
And it's included free with CVN's unrivaled trial video library.
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