Cross Examination of Plaintiff's Medical Consultant

September 25, 2017

By: Frank Scahill

This is a partial transcript of the cross-examination of plaintiff's medical consultant. Dr. Jerry Lubliner is a favorite expert witness for plaintiffs. He is often called as a consultant, with no treatment given to the plaintiff. He is polished, sincere, exceptionally well-spoken, talented and extremely bright. He likes to show he is the smartest guy in the courtroom. A defendant can use that narcissistic trait to their distinct advantage on cross-examination. A jury may be charmed and impressed by the direct examinations, but on the cross, defense counsel can show his true colors. Take, for example, this recent exchange between Tom Craven of our office and Dr. Lubliner in Kings County before Judge Dawn Jiminez-Salta during a July 2017 trial on a high exposure case with $2.3 Million in coverage and 100% liability against the defendant.

The plaintiff had a laminectomy and fusion from L3 to the Sacrum in 2011. The plaintiff also had a total left hip replacement in 2011. The plaintiff had a right knee arthroscopy in 2012 and a total right knee replacement in 2015. The plaintiff also had a left carpal tunnel release surgery in 2013. The 60-year-old plaintiff was out of work for over 300 days post-accident. This case could have resulted in a verdict above the policy limits. The case settled for $375,000 based on the strength of Tom's cross-examination.

To set the stage, a jury should know the Doctor's experience in the courtroom and counsel must take the upper hand having the Doctor agree to answer the simplest of questions with a yes or no. Here, Dr. Lubliner could not concede that simple point and made himself look foolish from the start of cross-examination:

Q. In fact, you have testified in court more than 250 times, correct?

A. Over 30 years, correct.

Q. Over those 30 years, over those 250 times, you know how the procedure is, right?

A. Correct.

Q. So if I ask you a yes or no question, you know to give me a yes or no answer, correct?

A. I can't answer that question the way you crafted it.

Q. If I ask you a yes or no question, please just answer yes or no?

A. If I am able to, yes.

Q. That was a yes or no question. You didn't give me just a yes, so my question is this if I ask you a yes or no question, can you answer it yes or no?

A. I can't answer that question the way you crafted it.

Q. If I ask you a straight yes or no question, you can't tell this jury if you can answer yes or no?

A. If it is a yes or no question, I will answer yes or no. But if I can't answer yes or no, maybe it is a maybe answer, I will have to answer maybe.

Then on the medicine, Dr. Lubliner, dropped the ball and lost the match by failing to concede the obvious:

Q. You don't believe that he had a preexisting degenerative condition in his right knee; is that your testimony?

A. I can't answer the question the way you crafted it.

Q. Yes or no, do you believe that the plaintiff had a preexisting degenerative condition in his knew, yes or no?

A. I can't answer the question the way you crafted it.

Q. You can't answer what you believe in?

A. I can. You are not allowing me to.

Q. It is a yes or no, do you believe --

A. I can't answer the question the way you crafted it.

Q. Do you believe that he had a preexisting degenerative condition in his right knee, yes or no?

A. I cannot answer the question the way you crafted it.

The transcript attached is worthy of a quick read. Rather than a frontal assault on the expert's medical opinion, which defense counsel could not win, the winning cross-examination technique is to take the witnesses' opinion to an extreme and show the absurdity of his position by his failure to concede points which everyone in the room knows is true. The "smartest man in the room" ends up looking much like the emperor with no clothes.

Read the transcript here.

Scahill Law Group P.C.
1065 Stewart Avenue, Suite 210
Bethpage, NY 11714

(516) 294-5200

(516) 873-6229

info@scahillpc.com

Copyright © 2020-2022 Scahill Law Group P.C. (Attorney advertising. Prior results do not guarantee a similar outcome. Read our Terms of Use)
Site design by Ralph Rosario

Paralegal

Scahill Law Group is a prominent Insurance Defense firm on Long Island. We are seeking experienced and motivated paralegals and Legal assistants to join our team.

Essential Duties and Responsibilities:

Following is a summary of the essential functions of this job. Other duties may be performed, both major and minor, which are not mentioned below. Specific activities may change from time to time.

Provide efficient administrative support.
Assist attorneys in handling cases from inception to the resolution of the matter.
Draft pleadings, discovery demands, responses, motions, various correspondence to clients and adversaries, etc.
Assist in trial preparation and various discovery.
Mail, fax, E-File, or arrange for delivery of legal correspondence to clients, witnesses, and court officials.
Assist attorneys in collecting information such as employment, medical, and other records.
Receive and place telephone calls.

Requirements

· 3 Plus years of experience as a Paralegal with working knowledge of insurance defense and/or Personal Injury Law

- Customer service skills
- Knowledge of Microsoft Office Suite

· Attention to detail, organized, time management

Ability to work in a fast-paced, high volume firm

Job Type: Full-time – Hybrid Remote Work

Benefits:

401(k)

Dental insurance

Health insurance

Paid time off

Trial Attorney-Insurance Defense

Scahill Law Group seeks a full-time Trial Attorney with a minimum of ten years of experience with an insurance defense background to take over a full pending caseload. The attorney would be responsible for representing civil defendants with primary venues being the five boroughs of New York City, Nassau, and Suffolk in Long Island and the Lower Hudson Valley. The position would require the Attorney to analyze lawsuits, prepare pleadings, conduct depositions and attend arbitrations, conferences, motions, and trials. The candidate must be organized, a team player, and able to handle a high volume of court appearances, virtual or/and in-person while handling a large caseload.

RESPONSIBILITIES INCLUDE

Analyze complex lawsuits referred from Claims and prepare necessary answers and responsive pleadings.
Interface and develop a rapport with our clients, claim customers, and our office team.
Conducts depositions and attends court conferences, arbitrations, motions, and trials.
Participates as a trial and/or appellate attorney in matters of significant exposure and complexity.
Possesses excellent knowledge of rules of evidence and civil procedure.
Possesses excellent knowledge of all aspects of Automobile Litigation, UM/SUM, and Premise Liability Insurance Law.
Provides legal research, advice, and direction to Claims on cases of significant exposure and complexity.
Work independently in making decisions in file handling, communicating those decisions appropriately, and keeping the Legal Management Team apprised.
Adept at working in a paperless environment, video conferencing skilled and proficient in computer legal case management systems.
Maintain minimum billing requirements

QUALlFICATIONS:

Possesses a minimum of ten years of relevant litigation and trial experience encompassing liability and damages verdicts.
Fully licensed to practice law in New York State and admitted to Federal Court in the Eastern and Southern Districts.
Must be able to handle a large caseload of High Indemnity matters including reporting requirements, roundtables, and a moderate to a significant amount of trial work.
Have a comprehensive knowledge of motor vehicle, premises, UM/SUM, and subrogation claims.

ADDITIONAL KNOWLEDGE. SKILLS AND ABILITIES

Excellent written and Oral Communication Skills
Willingness to work within the established system while also looking to improve processes and procedures and able to be flexible in all work assignments.
Proficiency with computer software including current Windows Operating System, MS Word, MS Teams, MS Outlook, and ability to adapt to new programs.

Legal Case Management Program experience is a plus. LexisNexis/TM

Attorney - Insurance Defense

Full Job Description

Attorney – Scahill Law Group
Responsible for handling a large volume of assigned litigation cases from inception through trial and to ensure all internal case handling and reporting requirements are consistent with the Scahill Law Group Litigation Philosophy and Litigation Management Guidelines. Provide the highest level of legal representation for Scahill Law Group Clients and their insureds.

Essential Duties and Responsibilities:
Following is a summary of the essential functions for this job. Other duties may be performed, both major and minor, which are not mentioned below. Specific activities may change from time to time.

Answer summonses and complaints
Initiate and respond to written discovery.
Prepare and respond to motions before the court.
Prepare for and attend all court appearances, as necessary.
Prepare for [including written submissions] and attend arbitrations where appropriate.
Prepare for, schedule, and conduct depositions and examinations under oath, as necessary.
Prepare for and attend trials, as necessary.
Maintain reporting procedures (i.e., file reviews, diary control)

Minimum Skills and Competencies:
The requirements listed below are representative of the knowledge, skill and/or ability required. Reasonable accommodations may be made to enable individuals with disabilities to perform the essential functions.

J.D. (Juris Doctor) Degree from an accredited US law school
Maintain appropriate licensing and educational requirements.
3 plus years of experience in insurance defense on behalf of an insurance carrier in any combination of the following areas: automobile liability, premise liability, liability claims and homeowner/premises,
Experience in all phases of litigation (including trials to verdict) involving complex, high risk and/or high exposure cases.
Possess a strong understanding of insurance law, including the laws and rules governing civil practice in the state of practice.
Ability to analyze legal issues and identify relevant case opinions and facts, as well as the ability to interpret laws, rules, and regulations.

Job Type: Full-time

Benefits:

401(k)
Dental insurance
Health insurance
Paid time off

Schedule:

Monday to Friday

Application Question(s):

Do you have experience in meeting hourly billing requirements?

Experience:

Insurance Defense: 3 years (Required)

Work Location: One location

Full Job Description

Primary Purpose:

Responsible for handling a large volume of assigned litigation from inception through trial and to ensure all internal case handling and reporting requirements are consistent with the Scahill Law Group Litigation Philosophy and Litigation Management Guidelines. Provide the highest level of legal representation for Scahill Law Group Clients and their insureds. Take ownership of any issue, problem, or error that could impact the company, policyholder, and/or loss participant.

Essential Duties and Responsibilities:

Following is a summary of the essential functions for this job. Other duties may be performed, both major and minor, which are not mentioned below. Specific activities may change from time to time.

Answer summonses and complaints
Initiate and respond to written discovery.
Prepare and respond to motions before the court.
Prepare for and attend all court appearances, as necessary.
Prepare for [including written submissions] and attend arbitrations where appropriate.
Prepare for, schedule, and conduct depositions and examinations under oath, as necessary.
Prepare for and attend trials, as necessary.
Maintain reporting procedures (i.e., file reviews, diary control)
Research and analyze legal questions and issues.
Write confidential legal memoranda.
Draft confidential opinions
Research and prepare post-trial motions and appeals.
Maintain current knowledge of applicable insurance law in the state of practice.

Minimum Skills and Competencies:

The requirements listed below are representative of the knowledge, skill and/or ability required. Reasonable accommodations may be made to enable individuals with disabilities to perform the essential functions.

J.D. (Juris Doctor) Degree from an accredited US law school
Maintain appropriate licensing and educational requirements.
3-5 years of experience in insurance defense on behalf of an insurance carrier in any combination of the following areas: automobile liability, premise liability, liability claims and homeowner/premises,
Experience in all phases of litigation (including trials to verdict) involving complex, high risk and/or high exposure cases.
Possess a strong understanding of insurance law, including the laws and rules governing civil practice in the state of practice.
Ability to analyze legal issues and identify relevant case opinions and facts, as well as the ability to interpret laws, rules, and regulations.
Possess strong analytical and critical thinking skills with the ability to provide concise, practical advice to non-lawyers.
Possess strong verbal and written communication skills with the ability to write motions and legal prose with clear and cogent arguments.
Possess strong organizational and time management skills.
Possess strong skills in attention to detail.
High degree of initiative, mature judgment, discretion, and the ability to handle sensitive matters on a confidential basis.
Possess strong client relationship skills with the ability to resolve conflicts and empathize with insured clients.
Possess strong negotiation skills.
Knowledge of complex medical issues, particularly orthopedic and neurological, with the understanding of etiology, causation, and treatment of injuries consistent with motor vehicle and premises accidents
Proficient in Microsoft Office (Word, Excel, Outlook, PowerPoint)
Proficient in Westlaw software
Solid understanding of the insurance industry and organizational relationships of the company, including the functions of other departments.

Desired Skills:

Experience in Legal Files case management software

Calendar Clerk

Job Description

A calendar clerk at Scahill Law Group, PC, is part of a team of dedicated professional’s that can handle a high-volume calendar. Under general supervision compile, verify and schedule daily calendars for court appearances of attorneys and perform other administrative duties related to the Calendar Department.

Essential Functions

· Experience scheduling Depositions

· Knowledge and understanding of the various court reporting agencies.

· Confirming court calendar, including but not limited to virtual conference, motions.

· Experience using a calendar system, such as a case management system to enter and keep track of all appearances.

· Contact attorneys and/or other parties regarding changes to court dates, including adjournments and cancellations.

· Review calendars to prevent over-booking.

· Interact with court, clients and attorneys on a daily basis.

Skills

· Oral Communication: Ability to communicate effectively with others using the spoken word.

· Organizing, Planning, and Prioritizing Work: The ability to arrange things or actions in a certain order or pattern according to a specific rule or set of rules (e.g., patterns of numbers, letters, words).

· Attention to Detail: Requires being careful about detail and thorough in completing work tasks.

· Time Management: Ability to manage one’s own time and utilize available work time to organize and complete work within given deadlines.

· Adaptability: Ability to adapt to change in the workplace.

· Dependability: Requires being reliable, responsible, dependable, and fulfilling obligations.

Recent Posts

Cross Examination of Plaintiff's Medical Consultant

Then on the medicine, Dr. Lubliner, dropped the ball and lost the match by failing to concede the obvious: