In the first part of this article series on the topic of how to prepare for cross examination of the defense expert witness, I discussed why an attorney would cross-examine a defense expert, and the advantages that expert has in influencing a jury. In the second part of the article series, I reviewed the four primary advantages that a trial attorney has against an expert witness in his own professional territory.
In this third part of the series, I’ll discuss the four stages of general preparation for the cross-examination of the defense expert. I have found throughout my career that each stage is crucial to enabling me to deliver the most effective cross-examination possible.
General preparation for cross-examination of a defense expert involves four stages:
1) Learn the expert’s subject;
2) Scout the expert;
3) Use your own expert;
4) Establish realistic goals.
Learn the expert’s subject
With help, time and perseverance, you can learn all you need to know about the usually very narrow part of the subject involved as it applies to your client’s situation.
Find a teacher, perhaps a professor at a local college, to conduct a one-on-one directed reading course. For about one-fourth your hourly rate he will review the literature in the area, recommend several general articles to familiarize you with the field, select articles to familiarize you with the field, select specific materials focused on the narrow aspect of the science involved, and then answer questions the readings raise relevant to your fact situation. You would be surprised how hard a college professor will work for $100 an hour – if he hasn’t already learned he can make more money as an expert witness.
It’s a great learning opportunity. You can develop some tremendous friendships. If you do it right the first time, you can develop your own expertise in the subject for use in other cases. And sometimes you can even develop your teacher into an expert witness for your own side as he becomes interested in the forensic aspects of the subject matter.
Robert L. Habush’s Art of Advocacy: Cross-Examination of Non-Medical Experts, by Matthew-Bender at Section 1.18(2) lists the more common sources for gathering technical data for use in cross-examining non-medical experts. Harry Philo’s Lawyers Desk Reference can also be an invaluable resource.
If you are going to litigate in a technical area, you have an obligation to learn that field of expertise. A lawyer should no more file a malpractice action against an accountant without understanding the basic principles of accounting, than he would file a contract action without understanding the basic principles of contract law.
If you do not have the time to learn a subject thoroughly enough to face an expert witness, associate someone who does, then practice in another area of the law. But if you do accept the challenge of learning a new field, the experience can be tremendously rewarding.
Scout the Expert
If you face an expert who has published in his field of expertise, then it is worth your while to obtain and review everything the expert has published. Your teacher or your own expert can trace the articles through the appropriate professional index. Index the publications:
(a) for contradictory statements for use in impeachment,
(b) for general principles supportive of your theory, and
(c) for embarrassing quotations about the limits of the expert’s knowledge.
It is amazing how experts writing for each other in technical journals constantly remark about how little they know and how much research there is to do, yet faced with a jury of laymen they can appear so sure of a conclusion adverse to your client – until cited to their own comments about the limitations of knowledge in their field of expertise.
Even if the writings are not exactly on point, they will often give you a flavor of the expert’s reasoning process, style and personality. And if you are reading articles by an expert, be sure to read the criticisms of those articles by other experts.
Where the expert has not published extensively but has previously testified, trial transcripts and depositions can be obtained from friendly trial lawyers. Start with Jury Verdicts Northwest, a service which compiles all verdicts rendered in Washington State with annotations including the names of the attorneys and the experts called by both sides. Go to the reports, call the opposing attorney and get a copy of the expert’s deposition, listen to a few war stories on how to approach him at trial, obtain the lawyer’s assessment of the expert’s strengths and weaknesses, and if the case was appealed, get a transcript of the trial testimony.
Do all of this before your own deposition of the expert witness. Read the material you obtain. Every expert has his own little tricks to avoid a question he does not want to answer, just like the rest of us. I know I use the same tricks over and over again, and I assume experts do too. And if you have seen a technique before, be waiting with a response.
The heart of preparing for cross-examination of the expert witness is a thorough deposition fully exploring the expert’s qualifications, and conclusions, then assumptions, data, and reasoning used to reach those conclusions.
Use Your Own Expert
Use your own expert to help you learn the subject matter, to scout the adverse expert, and to prepare your cross-examination.
Since anything that can possibly go wrong with the cross-examination of an expert usually does, try out each line of questioning on your own expert to find the defects in your comprehension of the field which may make particular approaches unworkable.
If the upcoming trial is really a battle of experts who disagree, do not let your expert take the position that he is correct based on his superior skill, knowledge, and training. Make the expert explain to you, in simple lay terms, precisely where the adverse expert agrees on common ground, where he accepts different assumptions or “factual” data, where his approaches and reasoning processes differ, and where in each instance the opposing expert is in error.
Attacking the opposing expert as unqualified and biased is not enough, and at times it is even counter-productive, when a jury will more easily believe the expert has simply made a mistake and come to the wrong conclusion, particularly when you can point to exactly where the error was made. Make it an obligation of your expert to explain to you why the defense expert is wrong, so you can explain it to the jury.
Establish Realistic Goals
From the moment the client first walks in the door, everything a good trial lawyer does is focused on one moment – the opportunity he has to stand before the jury in final argument and explain the client’s plight.
Every action the personal injury trial lawyer takes is designed either to prepare for that final argument or to convince an insurance company to pay money so that final argument is never delivered.
Cross-examination is no different. It is merely another opportunity to gather ammunition for final argument. Every cross-examination, every line of questioning, every question is subject to one scrutiny – “How will this help me in my closing argument to the jury?”
The general goal of cross-examination is to advance the “theme” of a case by securing the ammunition needed for final argument.
The conceptual error made by too many lawyers is to analyze the cross, independent of the entire trial, and thereby to set an unrealistic goal – usually the goal of “destroying the witness.” Because of the witness’ combination of expertise, stature, intelligence, and experience, it is unrealistic to expect to “destroy” each expert. Set an achievable goal. Wigmore said that the goal of cross-examination should be to “soften the impact of the witness by confrontation.” With an effective expert, the goal may be no more than to prevent the expert from winning the case for the other side. Don’t expect to win your case in cross-examination of your opponent’s experts, you will be doing better than most if you break even and avoid a disastrous loss.
In Part 4 of this article series, I will discuss the specific preparation of gathering ammunition for use in final argument.