One of the most satisfying, but often challenging parts of a trial is the cross examination of witnesses, especially expert witnesses. As John Henry Wigmore has famously said: “Cross examination is beyond any doubt the greatest legal engine ever invented for the discovery of truth.” However, Louis Nizer, a great New York trial lawyer, also has observed it can be risky for the cross examiner: “In cross-examination, as in fishing, nothing is more ungainly than a fisherman pulled into the water by his catch.” An example of that occurred during the prosecution of the Beachnut Corporation executives for using water instead of apple juice in their baby formula and mislabeling it. During the cross examination of a long time employee whistle blower, the cross examiner cited the witnesses employment evaluation which noted a shortcoming of being naïve about impractical ideals. He was challenged with “Were you naïve in June 1981 when this happened?” The Witnesses responded “I guess I was. I thought that apple juice should be made from apples.”
I always liked the anecdotal story about the defense lawyer cross-examining the plaintiff who claimed damages for a dislocated shoulder. After asking sympathetic questions about the disability and suffering, the lawyer asked the plaintiff if he would please raise his arm to show the jury the limited range of motion he now had from the injuries. After slowly raising the arm with difficulty, the lawyer then said “would you now please show them how high you could raise it before the injury” whereupon witness extended his arm to its full height to peals of laughter from the jury.
Here are some random observations about the art of cross-examination.
Collateral attacks of bias, when done correctly, can be very effective. Here’s an excerpt from a cross examination I did with an arrogant medical defense witness. It’s not perfect by any means but it gives a flavor of one collateral approach.
Q. You charge for coming here and testifying, do you not?
Q. Your charges vary between $100 and $150 per hour for depositions and you charge more than that for courtroom testimony right?
A. I haven’t been to court often enough to have a standard charge
Q. I don’t think I made myself clear. You charge more than $100 and $150 per hour for depositions and you charge more than that for courtroom testimony isn’t that true?
A. I never have
Q. Doctor do you had your deposition in front of you?
Q. Here is a copy of it. This deposition was taken at your office in January of this year?
A. I accept that
Q. At that time you were under oath?
Q. Your testimony was transcribed by the court reporter into this document? A. True.
Q. At page 40 line 10 did you not testify under oath:
“Q. How much do you charge for depositions? A. It varies between $!00 and $150 per hour for depositions. Q. Do you charge more for courtroom testimony? A. It depends on how much harassment I get but it does not exceed $200 per hour.” Was that your testimony under oath?
A. Yes, I was trying to encourage the lawyer to take it easy on me.
Q. Let’s talk about harassment then. If we turn the page, you will see that you were asked at line 14 “so, can I expect to see a bill for no more than $150 an hour? And your answer was, under oath, “it depends upon the extent of the function of the harassment.” Wasn’t that your answer serve?
A. I believe so.
Q. Were you aware of the fact that this jury is charged with the duty of evaluating the fairness and credibility of witnesses such as yourself?
Q. Do you consider it harassment doctor, to be questioned about your testimony when you come into a courtroom after being paid by these lawyers to testify on their behalf? You consider that harassment?
A. I think questioning can be harassing or non-harassing.
Q. Well doctor, you accepted the money and voluntarily became a witness. No one made you do it correct?
I tried a case in Seattle against Jack-in-the-Box for E. coli disease a child contracted from a hamburger. The child, along with several other children, was treated at the local children’s hospital whose physicians diagnosed serious kidney problems with future consequences. The defense called an East Coast medical expert who testified that the harm done wasn’t serious and that the future prognosis was good for the child. The points I made on cross-examination were:
- You came here to tell the jury that the treating treating physicians at Children’s Hospital are wrong in their conclusions and you’re right so there’s nothing to worry about?
- You know that the doctors used the same diagnostic test to determine the harm for kidney function not just in this child’s case but in the other cases as well? So, does that mean that you think the advice they gave to the parents of the other children in this regard was wrong as well?
- Your position about the future is that the parents have nothing to worry about?
- Your position is that when this child is old enough to understand what happened to her she should not be concerned because there’s nothing to worry about?
- Suppose you advised parents of a child who was your patient, that the child had a 20 to 30% chance of having to have open heart surgery at some future time. Suppose some out of town expert who had never examined the child said that was wrong and that any risk was less than 1%. Who do you think the parents of that child would listen to and trust, you or the other doctor?
- Can you understand why the parents view your opinions with a lot of distrust?
- After you testify here and go home the parents and the child are left with facing a lifetime of medical checkups test and uncertainty. Whoever is right it’s true that this child will not have a normal life?
- The parents and the child face of future of uncertainty and concern don’t they?
- Can we at least agree that no one, not even you, knows for sure what the future will hold for this child and her family?
Let me end this discussion with a true story about cross examination. It happened in the county court where I practiced for many years. Robin Welts was one of the old school lawyers you would find in small towns around the state. They didn’t specialize. They did all kinds of legal work and a variety of trial work as well. This was before discovery rules for trials. You had no idea who the witnesses were or what they were going to say until they took the stand to testify. Robin was a great trial lawyer. In 1958 Robin was representing a property owner from nearby Sedro Woolley. The state was condemning part of his property for a road. The real issue was the value of the remaining land which would have a road going through it. The higher the value the less the state had to pay for what they were taking. The state used an experienced real estate agent as an expert, Robert Miley. Miley’s position was that the remaining land would have an increased value from the road and Robin’s was it would have minimal value.
Robins cross-examination was aggressive and Miley became angry over the issue. At one point in response to Robin’s challenge, Miley fired back: “Why, I’d pay $12,000 for it myself.” That figure happened to be a lot more than the property owner secretly valued the land. Robin immediately countered with: “You’ve just made a sale.” Miley was so upset and flustered, he immediately reached into his coat pocket and pulled out his checkbook. He wrote out a check while on the stand and that ended the trial.
It’s the only occasion I know of where the expert appraiser in a condemnation case was cornered into buying property while testifying on the witness stand. Now that’s great cross-examination. The irony is that the appraiser/real estate agent, later sold the property at a profit.