Often we find ourselves most apprehensive about one kind of cross examination – that of experts. Usually it’s because we have learned from experience that this class of witness rarely is there as an objective scientist or qualified expert. Rather, they see their role as co-counsel to the lawyer who hired them. An advocate for the side that paid paid them to become an expert. When you combine that attitude with experience in being cross examined, certain tactics are often developed by the expert to evade being totally candid or even responsive to the question. For this kind of expert witness it is rather like a contest or game. If you add to that a witness who has an ax to grind, for example a doctor who believes all medical malpractice lawsuits should be eliminated as an attack on the profession, you can also have a witness who believes the ends justify the means. Honesty and objectivity are not ethical standards they adhere to when testifying. Certainly there is no formula or secret code book that will tell you how to cross examine every expert. There are, however, some general principles worth considering. Here are a few.
1. Do your homework If there is one kind of witness you must prepare cross examination for it is the expert witness. You usually have their deposition in your case. It must be studied and outlined for helpful testimony. That means being prepared with the statement, the page and the line number. It also means a video clip of the statement, if the deposition was video taped, saved in a way that allows it to be played immediately, without fumbling or delay. It means having your copy of the deposition and being able to provide the witness with a copy, without having to take the original away from the judge so he or she can follow along. It also means collecting any other depositions the witness has given and studying those in the same way. Looking for articles, seminar talks, web material or social media material as well as advertising involving the witness. It also involves an outline which you follow. One that deals only with major points and not knit picking.
2. Cross examination is a battle of impression & not logic Whether you “win” or “lose” the cross examination struggle depends upon the impression you and the witness create. We know that people decide on the basis of how others look, how the sound, how they are dressed and on their passion as well as their credibility. It’s not about substance. it’s about style. Keep in mind the majority of communication is made non verbally.
3. Be clear, be brief and then stop. The classic mistake most lawyers make is that the talk to much and too long. That’s particularly true in cross examination. Think in terms of television programs about law and trials. The jurors bore easily. They are particularly paying attention with certainty only two times during cross examination. When you start and when you finish. Have a good start and a powerful finish. Do not assume the jurors will understand the point you make unless you say it for them. “So, what you are saying is….” or “that means….doesn’t it?” Do not save points for explanation during final argument. As appealing as the idea that you can make some dramatic point in final argument, the fact is that in a long trial it is too late. Make your points clear to the jury
3. The general goals of cross examination In my view the single most important goal is to undermine the credibility of the witness. If you do that, it makes no difference what opinions they express. Goals include (a) bias (b) self interest (c) inconsistent testimony with evidence (d) with previous testimony (e) with common sense and (f) failure to be fully informed about the facts.
4. Stay focused Nothing is worse than the lawyer being distracted and diverted from the theme or issues in the case. Keep a big picture view of the case at all times and avoid chasing after minor distractions or issues. Concentrate on a few big points. Think of using a rifle and not a shot gun. Have a consistent theme you stick with. Use leading questions. Keep a calm demeanor and never show panic or fear. Remember, there are times when the witness says something that you must follow up on even if it requires a “why” question or leads to areas you are uncertain about. If you know your case and you are prepared you should be able to do this without fear of serious damage to your case. The failure to follow up on something the witness says can be seen by the jury as the witness was right and the lawyer was afraid to go into it. This only applies to major points however.
5. The five steps in preparing your cross examination Here is a five step plan for preparing cross examination of the expert:
(1) Determine your objectives & make them major ones. Know exactly what you want to establish and why before you start
(2) Organize back up for each objective. Have your document or impeachment ready and immediately available. Be sure you are prepared for a denial or attempt to evade with back up that isn’t just arguing
(3) Divide your objectives into separate sections. Have each section a complete package with your approach and your documentation
(4) Organize your objectives by priority. Have a strong start and strong finish. Determine which points are more important than other ones. Be prepared to discard sections if needed.
(5) Organize your total cross examination as it were dividers in a notebook. If stored in an I-Pad or computer or notebook, have it arranged so you can see an outline of the entire cross examination and have the ability to skip to another section at will. Have your backup documentation immediately available in an organized manner.
Whole textbooks and many of them have been written about this subject so this is only a brief outline of ideas. Good luck.