WHY IT MATTERS If you haven’t precluded the expert, they must be testifying on about some contested issue that requires special knowledge, training or experience: – Economic valuation – Etiology of physical complaints – Causation of a particular event Undermining the other side’s expert is far more persuasive than putting on a defense expert
UNDERSTAND THE SCIENCE What is this expert’s opinion? What is the basis for this expert’s opinion? Where is the expert the strongest? – Generally it will either be good science or good presentation Where is the expert the weakest? – Conversely it will generally be bad science or bad presentation Unless you understand the science, you will not be able to figure out the strengths and weaknesses of the expert
METHODS TO GAIN UNDERSTANDING Start by carefully reading the expert’s report – Highlight what you do not understand. Research – Start with Google, save your client time & money Use your expert’s expertise – Ask your expert where the opposing expert is weakest Peer reviewed studies – Establish “learned treatises” in depositions
GENERAL RULES FOR EXPERT CROSS Never ever ask a question you don’t know the answer to…. unless the answer does not matter. Cross examination of experts is one of the most exciting parts of trial. It can win or lose your case… if you make it exciting right from the start. Don’t wait to get to the good stuff.
Structure of Cross Examination If the expert’s weakness is presentation, spend a fair amount of time on qualifications. Assuming the expert survived a 702 challenge, consider whether to challenge expert during voir dire… be mindful of Judge Make sure you have an up to date testimony list … up to date within a month of trial Be thoughtful about whether to cross on expert charges
Establishing Context and Use of Headnotes Quickly and Concisely direct the expert to the opinion at issue: – Doctor, you’ve opined that MTBI symptoms can worsen over time, even when the injuries are of the type present in this case. Direct the expert to the basis for that opinion: – For that, you cited Biegler… Show that the reliance on that source was inappropriate. – True that the Biegler article excluded injuries of the type present in this case?
Do Not Get Pushed Around “Well, counselor, if you had read that article you would know that, xxx” READ ALL SOURCES YOU INTEND TO CITE “Doctor, I’m sure there are a lot of things you want to tell us, and Mr. Plaintiff’s Attorney will have the opportunity to elicit your testimony in that regard. But for now, I would like you to answer my question, which was x.”
Evidence Nothing will weaken cross examination faster than disorganization Have every question in front of you, every citation at your fingertips, every exhibit ready to show the jury. Never allow the expert to “look in the file” for something…. Unless the information the expert relied on doesn’t exist.
Manage the Expert Within 10 minutes of cross, the expert should understand how prepared you are. You are looking for the, “If you say that is what the record says, I trust that it what it says” response. It will move cross examination along more quickly which will hold the jurors interest. Do not draw an admonishment. Do not cut off or interrupt the expert. Jury should feel that nothing this expert can say worries you. (Also admonishment can hurt your credibility and improve the witness’ credibility).
Very Last Resort “Your honor, I respectfully request that the court instruct the witness to answer the question asked.” Try to avoid this unless absolutely necessary.
Impeach Cross examination outline – yes or no questions with only the occasional call for a narrative to break up the monotony, and those must be carefully controlled. Every question/statement should be followed by a cite. Impeach: Confirm, Credit, Confront. – Doctor, today you testified x. – You remember that I had the opportunity to ask you some questions under oath previously, in your deposition? – I am showing you your transcript, p. 56, line 5, please read along with me…
Terminology/Lingo Scientific terminology/lingo is virtually unavoidable with experts. Make sure to define those terms clearly and concisely for the jury. Look at the jury, are they understanding what you are talking about? Helping them understand will make you look more credible and will mitigate “expert” mythos
Presentation Think about how you are going to present Do not be unduly aggressive Letting your skepticism show may be appropriate where expert is less credible – Be aware of your presentation The jury can tell when you are annoyed. It had better be for a good reason.
End Strong Even if you are going to stop after a court admonishes the witness. Make sure that the jury is left with your strong point