Published in Los Angeles Lawyer, April 2005
In many respects, the cross-examination of an expert witness is the same as for other witnesses. Some basics include: Be brief…Do not quarrel with the witness…Never ask a question to which you do not already know the answer…Avoid one question too many…and so on. However, there are some important differences.
Preparation is even more important when dealing with an expert witness. Your research should include:
- Has this witness written or testified previously with inconsistent conclusions to those being taken in your case?
- Does the expert always testify for the same side? An impartial expert can consistently apply his trade on behalf of both plaintiffs and defendants.
Attacking the opposing expert’s theory or conclusions is much more difficult than attacking their qualifications. To prepare for the substance of the opinions, you should be schooled by your (equally competent) expert. Your expert can educate you as to weaknesses and flaws in the opposing position, as well as the jargon necessary to understand what is being said. Your expert may also know information about your opposing expert that you would otherwise have difficulty learning.
Your cross-examination plan should emphasize quality over quantity. The more qualified and/or experienced the expert, the less likely that you will gain much from a more lengthy cross. The reason is that the expert has years of training and experience from which to draw in answering your questions. A wide-ranging cross is more likely to give the witness a new chance to demonstrate his expertise or explain his views. Particularly with complex subjects, focus on your opponent’s big problems that you know you can demonstrate.
What Questions to Ask
Your deposition should have uncovered the assumptions upon which your opposing expert relies. These assumptions often control the result the expert reaches, and will likely be the centerpiece of your examination. Your ultimate goal is to provide the jurors with the basis to argue against the expert’s conclusions by showing that they are based on assumptions that the jury independently rejects. The jury will generally find it much easier to critique the assumptions than to challenge the expert’s science or techniques.
All cross-examination is better when done with short and simple sentences. Add only one new fact or point with each question. This makes it difficult for the witness to disagree without appearing obstinate. Short questions provide less room for the witness to squirm away from your control, or provide explanations that you would rather not hear.
The use of questions that do not contain extra details is particularly important when dealing with the complex subjects that experts address. Experts are usually careful, and understand the importance of precision. Avoid questions containing absolute words (such as “always” or “never”), or unnecessary adjectives (such as “clearly” or “rapidly”). Otherwise, the expert may take advantage of your question’s exceptions or subtleties to avoid answering in the desired way.
Most questions should be leading, meaning the question can be answered with a “yes” or a “no”. This has the practical effect of having the attorney serve as a witness, with the real witness ratifying the attorney’s testimony. However, as long as you have a good deposition transcript to support you, some questions are better left open for the expert to complete. Some examples, all of which ask for specific objective data, include:
- How much money did you make last year testifying for other plaintiffs?
- Of the thousands of medical journals published around the world, how many of them have asked you to publish the opinions you are expressing in this case?
- When is the last time you treated a real patient?
Lawyers often try to impeach an expert with the fact that he has been paid for his work. This backfires as often as it works. For example, if the expert has put significant time and cost into the matter, does this indicate thoroughness rather than bias? If the expert has a high hourly rate, does this mean that she is a liar, or rather that she is eminently qualified and in high demand? The impeachment from fee-related questions is minor compared to the witness’s confidence and preparation on other matters and the effectiveness of the rest of your cross-examination.
Some experts attempt to demonstrate their superiority by using technical jargon. When dealing with a pompous expert, you must know the expert’s lingo. Get the expert to agree with your alternative explanation that uses everyday language. Doing this will demonstrate the expert’s arrogance, and will raise your credibility with the jury.
The Order of Questions
You should generally begin and end your cross-examination with your strongest points. Otherwise, use the following sequence:
- Practically every opposing expert will have opinions that support your case. This corroborating testimony will have a stronger impact than the same testimony from your side. Therefore, start your examination with the areas or themes that will allow you to turn the opposing expert into your witness. At the beginning, your opposing expert will be less hostile.
- Next, dilute the opposing expert’s opinions by seeking agreement regarding possible alternative explanations that favor your theories. A jury will often give credit to a mere possibility, even if this possibility may not be probable.
- After the corroborative portion of the cross-examination, ask the more destructive and critical questions. However, do not be aggressive, as this might cause the jury to be sympathetic towards the expert. You should attack an expert only when you believe the jury will see the witness as being unfair, arrogant, or disrespectful of the truth. Even then, you must never cross the lines between tough and mean, or confident and arrogant.
Experts often make a huge difference in the trial. Additional attention to the expert portion of your case is usually worth the effort.
David Nolte is a principal at Fulcrum Financial Inquiry LLP with 30 years of experience performing forensic accounting, auditing, business appraisals, and related financial consulting. He regularly serves as an expert witness.