Direct. My direct medical examination is of treating physician referred by our office. He is an MD with emphasis in sports medicine and treatment of traumatic injuries. I use a combination of Luvera’s outline and my insight.
Cross-Defense Medical Expert. In cross exam of defense medical expert we initially, discuss bias using Luvera outline. Next we go to my Frontiers of Trauma theme. “Agree there are three phases of trauma: person’s preexisting condition going into trauma; trauma; and, treatment of traumatic injuries with continuing conditions possible.”
Phase One- Going into Trauma. “Agree woman more likely than man to be injured in rear end collision.” “Agree more likely to be injured in rear end collision if do not expect impact.” “Agree more likely to be injured if elderly woman.” “Agree more likely to be injured if preexisting degenerative disc disease.”
Phase Two- Trauma. On phase two, the trauma of collision, we confirm our female plaintiff: Does not expect collision; Is an elderly woman; Who has pre-existing degenerative disc disease. Agree “plaintiff fully cooperated with Defense Medical exam;” “plaintiff gave maximum effort;” “plaintiff is a candid decent person.”
Phase Three- Treatment/Residuals. Next we have defense expert cover initial subjective and objective presentations of plaintiff in early medical records. “Agree treatment ordered is necessary to address injuries received in collision.” “Agree plaintiff followed treatment regimen set by her physician.” “Agree plaintiff has reached maximum medical improvement as of last visits with her MD.” “Agree any lasting medical problems [caused by collision] now must be considered permanent since plaintiff has reached maximum medical improvement.”
Defense Medical Examination. We then cover the defense medical exam findings that are positive confirmations of injury related to condition caused by trauma. Objective findings are discussed.
Plastic v. Present Cross. Although I prepared “Chapter Format” questions for cross examination, I took John Henry’s advice to stay in the moment without being wedded to my prepared plastic format. I allowed myself to live in the moment during my cross examination. I followed the advice of Allan Watts:
There are … two ways of understanding an experience. The first is to compare it with the memories of other experiences [prior deposition testimony], and so to name it and define it. This is to interpret it in accordance with … the past. The second is to be aware of it as it is, as when, in the intensity of …[the trial] we forget past and future, [and] let the present be all … .”
Trying a case in the present “is neither careless drifting on the one hand nor fearful clinging to the past and the known on the other. It consists in being completely sensitive to each moment, in regarding it as utterly new and unique, in having the mind open and wholly receptive.” Alan Watts, The Wisdom Of Insecurity, (1951).
This allowed me to have a conversation with the medical expert in the moment which both jury and expert related to and allowed me to go beyond my preconceived plastic questions in a case positive way.