In the three earlier articles of this series, I discussed the reasons why you need to cross-examine an expert witness, the four main advantages a trial lawyer has over an expert witness, and the four stages of general preparation for the cross-examination. In Part 4, I will discuss the specific preparation required to undertake an effective cross-examination.
After completing these four stages of general preparation, and well before trial, prepare as many specific lines of questioning as possible, each directed at the goal of gathering specific ammunition for use in final argument.
For purposes of suggesting alternative possibilities, these potential lines of questioning are divided into three conceptual categories.
1) The utilizing approach accepts the expertise of the witness, recognizes that he is being favorably received by the jury, presumes that the likelihood of successfully attacking his credibility is outweighed by the danger of jury resentment should you attack and fail to destroy him, and instead uses his expertise to establish positive information supporting your position.
2) The neutralizing approach avoids an attack on the expert’s credibility, but neutralizes the effect of his testimony.
3) The destructive approach aims at destroying the credibility of the opposing expert.
Rather than attempting to “destroy” each expert witness, a difficult and dangerous task, perform a risk-benefit analysis and choose an attainable goal, such as utilizing or neutralizing the expert, depending on the damage done by the testimony, the perceived ability of the witness to withstand a destructive cross-examination, the reaction of the jury to the witness, and your own level of experience at cross-examination and knowledge in the field of expertise.
The Utilizing Approach
Where the expert is honest, impressive and liked by the jury, attempt only the utilizing approach to establish information favorable to your case such as:
(a) General principles of the expert’s discipline with which all experts agree – such as principles of anatomy and physiology on a medical issue, or;
(b) Points of agreement between the adverse expert and your expert (taken from the deposition you have conducted to pin down these points of agreement after your own expert has delineated them for you.)
Again, the advantage of this approach is that you can prepare for it in advance and it is therefore less apt to end in disaster.
Several excellent examples of a utilizing approach with medical witnesses are found in Marshall Houts Art of Advocacy: Cross-Examination of Medical Experts, at Section 107 through Section 1.13.
Generally the utilizing approach is less risky, so it can be used with a strong expert who would likely withstand a destructive cross but who must be “examined” so as to give the impression of confrontation to “soften the impact.” It is less abrasive, so it can be used where the jury seems to like the expert and would resent a destructive approach. It is easier to perform, so it can be accomplished by a well-prepared novice trial lawyer. But it may be inadequate to save the case where the expert’s testimony has destroyed an essential element of the case. In that situation, a riskier cross must be undertaken unless you have foreseen that situation in pre-trial preparation, in which case you should have considered settlement and avoided the problem altogether.
The Neutralizing Approach
Where the expert is honest, impressive, and well-liked by the jury – but mistaken in his conclusions, use a neutralizing approach to take away the effect of his testimony without attacking his credibility. Here is where your work with your own expert to find the error in the adverse expert’s opinion pays off. A jury is more likely to reject the adverse expert’s theory than to reject him as a person as a result of destructive cross-examination attacking his credibility. Jurors are reluctant to believe a witness, even an expert witness, is motivated by prejudice or personal interest.
Where two experts testify to opposite conclusions, the lawyer who attributes the disagreement to the bias, prejudice, or corruption of his opponent’s expert will likely lose to the lawyer who accepts the opposing expert as a nice person who has simply made a mistake – a mistake that is clearly and simply explained in final argument (not in cross-examination) after the ammunition for the analysis is obtained through neutralizing cross-examination.
An expert can be neutralized by an examination obtaining his admission that his opinion is derived from certain facts or assumptions. It is not necessary to force the expert to admit that the facts or assumptions are incorrect. That can be left to direct or cross-examination of other witnesses. In final argument, you then neutralize the expert by pointing out that the expert may be qualified and may have properly reasoned to his conclusions – but from facts or assumptions demonstrated to be untrue.
For example, the loss of earning capacity conclusions of the expert economist can be shown to be based on certain facts and assumptions regarding life expectancy, proper discount rate, earning capacity prior to injury, and degree of vocational limitation imposed by the injury, the last factor usually based on the testimony of an expert vocational rehabilitation consultant. Once the economist has admitted his conclusions are based entirely on his acceptance of the conclusion of the vocational rehabilitation consultant, the economist (perhaps admired and accepted by the jury) can be neutralized by an attack on the supporting conclusions of the underlying vocational rehabilitation expert (who may not be as impressive or as well liked.)
An expert can be neutralized by obtaining his support for the truth of propositions which are either demonstrably untrue or contrary to the beliefs of a majority of the jurors. The propositions need not even be central to the claim, so long as in final argument you infer that any expert who believes the known falsehood to be true is probably also wrong on his central conclusion. Conclusions of experts who do not use “common sense” are easily disregarded by juries.
Another classic neutralizing technique is “the wedge” whereby the expert is enticed to concede that his field, unlike physics or mathematics, is an imprecise area where reasonable people – including expert witnesses – can come to honestly held differences of opinion. Ultimately this admission allows the jury to disregard experts from both sides and decide the issues based on other facts developed in the presentation.
The neutralizing approach, like its utilizing counterpart, is less risky than the destructive approach because it does not involve a toe-to-toe confrontation with the expert witness, a dangerous zero-sum game with a clear winner and a clear loser. It is harder to implement with a court-wise expert than a mere utilizing technique, but when successful it allows the jury to decide in your favor without having to reject an honest, impressive, well-liked expert witness.
The Destructive Approach
The destructive approach directly attacks the credibility of the expert. It therefore will be most vigorously opposed by the expert, and if the witness is liked by the jury, an unsuccessful attempt at destroying the expert will be resented.
How to impeach the expert is best covered in Younger’s The Art of Cross-Examination.
One must prepare in advance of the cross-examination any attacks on an expert for inability to perceive, recollect or communicate; for bias, prejudice, interest, or corruption; for prior convictions, prior bad acts, or prior inconsistent statements; and for a poor reputation for truth and voracity. Never “fish” for answers on credibility at trial, the expedition is too obvious, both to the witness and the jury.
Direct attacks on inconsistencies in the testimony of the expert witness fall into two categories: the testimony may be internally inconsistent or externally inconsistent. External inconsistency, where statements of the witness are shown to be contrary to demonstrable facts or widely held beliefs, was explained under the neutralizing approach.
Examining for internal inconsistency is much more difficult because both contrary propositions come from the expert witness himself. Unless you are careful the expert will withdraw one statement, modify one, or claim that your lack of understanding of his field prevents you from understanding of his field prevents you from understanding that the propositions are not inconsistent. Approach obliquely, at separate parts of the cross, first the least strongly stated proposition (to lock it in, or failing that, to abandon the line of questioning) then establish the proposition more central to the expert’s position. Do not confront the expert with the inconsistency. Save analysis of the internal inconsistency for final argument, merely obtain the ammunition in cross-examination.
Before using the destructive approach consider two warnings.
First, Gerry Spence, perhaps the greatest trial lawyer of our time, and certainly a man capable of destroying an expert where there is any opportunity for attack, warns us never to kill the witness without the jury’s permission. Just because you can destroy the expert does not mean you should. Firs the expert must do, or be led to do, something which allows the jury to understand why his credibility must be directly attacked.
Second, from Machiavelli, never strike at the King unless you can deliver a fatal blow. If you use the destructive approach, prepare well in advance and be sure you have your facts assembled before you begin. A trial is a contest to develop and keep credibility. At the end of a direct attack on the credibility of the expert witness, someone’s credibility will be destroyed – the expert witness’ or the attorney’s.
Destroy reluctantly, but thoroughly.
In the final part of the article series, I will discuss the final preparation and the “Ten Commandments” in conducting a cross-examination.