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OCTOBER 2012 NEWSLETTER - Expert Witness Cross Examination
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Unique Tips for Expert Witness Cross-Examination

by Leslie Schafer, Ph. D.1

 

In direct examination, you have prepared your expert and have control of the questions. Direct is your opportunity to present your story. Cross-examination of experts is a different matter. You can use expert cross examination to impair the story for the opposing side and to bolster your own story—but, you need to tread carefully, the process is not entirely in your control.  How can you benefit from your cross-examination of the opposing expert? How can you prepare your expert to be cross-examined? In advance of our participation in the “Expert Witness Cross-Exam Workshops” at the State Bar of California’s 85th Annual Meeting in Monterey, CA,2 I surveyed my fellow testifying experts at Econ One to collect unique tips for successful expert witness cross-examination--both for you and for your expert.

 
1) Cross-Exam Is Your Opportunity Too
 
Cross-examination is not merely about the opposing expert’s story. You can use it as an opportunity to support your own expert’s testimony and your narrative. This can be particularly helpful if he/she doesn't yet know what your expert is going to say . For example, ask the opposing expert to embrace facts or theories that are important to your expert. If she has not been well prepared or experienced (see #3 below), she may not have thought through the issues from that perspective.
 
2) Be Contrarian
 

Ask the expert to describe the kind of evidence that would have produced a contrary opinion.  Press him to identify the minimum evidence that would have been sufficient to do so.  You may find out that the expert is employing an unfairly high standard in rejecting other alternatives or, better yet, cannot articulate a standard at all.  You might get the expert to supply a set of contrary facts that you could later prove (maybe through your own expert). That could be very useful in later argument, even if the opposing expert will not “agree to agree” with such facts.  

 
3) You and Your Expert Should Be Completely Familiar With Her Deposition Testimony
 
A careful reading of your expert’s deposition can provide clues as to what opposing counsel will ask at trial.   You should use this roadmap to prepare your expert for cross. First, by helping your expert anticipate the questions during cross. And second, by weaving anticipatory questions into her direct examination. This tactic will deflate opposing counsel’s cross examination (and likely can enhance the credibility of your witness). Also, it goes without saying that it's important that an expert's trial testimony not contradict previous testimony in the case.
 
4) Attitude Is (Almost) Everything In A Bind
 
Be it direct or cross, at trial the jury is hearing your expert’s story for the first time and is forming an opinion about her expertise as much from her demeanor as from her analysis. Projecting confidence without arrogance and treating the questioner with respect conveys an image of credible expertise.
 
The expert’s “presence” (i.e., projection of attitude) is crucial, particularly during difficult cross questions. On numerous occasions, we have observed opposing experts demonstrate a degree of contempt for the questioning attorney when that attorney has asked a question for which it is difficult for the expert to look good. One of our experts noted: “I have marveled at the jury’s reaction to these moments--few juries react positively.”
 
Let’s face it--every analysis has strengths and weaknesses. The opposing attorney, working with his or her expert, will likely know where some of the weaknesses lie and will attempt to exploit them on cross. 
 
Opposing counsel will most likely try to back your expert into a corner at some point during the cross. The expert’s presence at this time can be as important as the content of her answer. A calm, positive attitude tells the jury that your expert is confident in her analysis, even if a “problem” exists. It is very important not to show disdain for the question or the questioner. Now is not the time for an expert to demonstrate superior intellect by scoffing at the questions. Your expert can demonstrate that she is in court to try to understand and explain the problems associated with her analysis by a simple admission that the tough question is a good one and an interesting one.  Not letting the opposing attorney rattle her can result in just the opposite occurring. Responding to a “got you” question calmly, with a smile, and perhaps even a compliment about the question can actually fluster the attorney looking to get under your expert’s skin.
 
 
5) “I Don’t Know”
 
One of our experts recalled a story from one of her early prep sessions: the attorneys had her practice the following response repeatedly: "I don't know."  They called it an “expert ego transcendence exercise.”  The attorneys explained that it is far easier to deal with an answer of "I don't know" -- than to deal with a guess that turns out to be wrong. 
 
Would you like to learn more? Join us in Monterey, CA on October 14th and 15th. I look forward to seeing you there!
 
[1] Leslie Schafer, Ph.D. is a Senior Economist at Econ One Research, Inc. where she specializes in the application of economic analysis and econometrics to litigation matters related to antitrust, intellectual property, product liability, breach of contract, and commercial damages. To learn more about Econ One, go to www.econone.com.
 
[2] Michael D. Schwartzof the Trial Advocacy Group, LLC will be teaching Session 109: Expert Witness Cross-Exam Workshop - the Plaintiff’s Expert (Saturday, October 13, 2:15 pm) and Session 141: Expert Witness Cross-Exam Workshop - the Defendant’s Expert (Sunday, October 13, 10:00 am) at the CA State Bar Annual Meeting. Participants at these workshops learn how to present and challenge expert testimony in trial and have the opportunity to conduct cross-examination of actual expert witnesses provided by Econ One Research. Attorneys are encouraged to attend either or both sessions.
 
Michael D. Schwartz teaches trial advocacy with the Trial Advocacy Group, which presents continuing education programs (including seminars, workshops, and mock trials) for law firms, businesses, and organizations, including expert witness associations, state bars, trial consultants, and voluntary bar associations. To learn more, send an e-mail to TrialAdGroup@Mac.com.
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