A Sunzi Strategy for Expert Cross: Make Their Expert My Expert.
Dr. Florette Hazard - Chief pediatric pathologist Stanford medical school.
Sunzi (pronounced Swin/Zu) wrote The Art of War as a manual for training warriors in 6th century BC China. At JHPII we employ our own versions of Sunzi’s strategies in our trial work even today.
Our adaptations of Sunzi’s strategies work for the cross examiner too. Among Sunzi strategies that we employ, we call one “Their Expert. My Expert.” Adapted from Sunzi’s, “When you surround an army, leave an outlet free.”
Our version adds an important element to Sunzi’s strategy. When you surround their expert, choose the expert’s outlet. As your expert. “Their Expert. My Expert.” The expert’s only way out is the way you choose. As your expert. Like a warrior, an expert with his back against the wall and no other option will oft times stand and fight. Better for you if his only way out is as your expert. Quite rightly, condemning the other defendants along the way.
For example, after you marshal the facts and confront a defendant (or defendant’s expert) with the medical record, treatises, texts, peer reviewed articles, etc, ask “Had you known . . .” questions. “Had you known the baby’s heart rate remained at 200 in the presence of prolonged decelerations and maternal fever, you’d have delivered the baby . . .” A: “Of course.” “Nurse Jones never told you . . . the baby’s heart rate remained at 200 in the presence of prolonged decelerations and maternal fever.” A: “No. She did not.” “Had you delivered the baby, more likely than not to a reasonable degree of medical probability [and certainty] your patient would have survived. A: “Yes.” And fully recovered within a few days.”
“Her only way out is the route you want her to take. Leave her only your way out.”
An expert, like a warrior with his back to the wall, no way to flee and forced to fight, may cause casualties to your case. So . . . let them flee. Flee down the path you choose though. Flee in the way most advantageous to your case, your client. Fleeing as your expert pointing their finger at the other defendants. At the other defendants’ negligence and how those defendants’ negligence caused your client’s death.
