Mar 29, 2018
Cross-Examination of Adverse Experts: 13 Commandments
Mar 29, 2018
By John M. Feder
Picture this scenario: You are well into your trial and are about to take on your opponent’s highly-paid and self-important expert witness. You are excited to expose the fallacies in his or her opinion, and can’t wait to show the jury how much you know. Pause…wait…and think before you dive in. And heed this baker’s dozen commandments from someone who has been there before!
1. THOU SHALT PREPARE, PREPARE, PREPARE.
Get detailed input from your own experts in planning your cross-examination of adverse experts.
Create a plan of attack implementing what you have learned about the style and personality of the adverse expert as well as the key points to establish.
For deposition, make a written checklist setting forth the sequence and precise wording of your questions. Remember you want sound bites for trial.
For trial, prepare visual aides, charts, photographs, models, PowerPoint, etc. so the jury can see what you are teaching and then remember it. Show and tell works!
2. THOU SHALT NOT BORE THE JURY.
Be brief – start strong and finish strong.
At trial, attorneys often begin their cross-examination by arguing about the last question from the direct exam. Make your cross-examination concise and interesting. The jurors have to understand the logic of your reasoning. Remember to keep your focus on the important points, not the boring minutiae.
3. THOU SHALT KNOW THY OBJECTIVE.
Make a list of the points you need to make and the documents that support each point.
Tab your cross-examination checklist by subject matter and by documents needed to prove or impeach.
4. THOU SHALT LEAD THE WITNESS.
Lead the witness down the path you have created in your plan of attack, using your deposition sound bites as a guide. However, avoid the temptation to ask why, how, what, please explain, or how can you possibly arrive at such a stupid conclusion. You won’t likely appreciate the answer!
5. THOU SHALT HAVE A PLAN AND FOLLOW IT (BUT BE ADAPTABLE IF YOU STRIKE GOLD).
Great cross-examination at trial starts with a great deposition before trial. Make sure you read the deposition yourself and have the exact question and the exact response from the transcript to use for impeachment.
6. THOU SHALT NOT ASK A QUESTION, THE ANSWER TO WHICH YOU DO NOT KNOW IN ADVANCE.
Don’t go fishing in front of your jury.
7. THOU SHALT ALWAYS LISTEN CAREFULLY, AND THOU SHALT WATCH THE JURY TO SEE HOW THEY ARE REACTING.
Don’t find yourself searching for your next question before listening carefully and concentrating on the response to the current question. Be mindful of how the jurors are reacting to the witness’ testimony and demeanor.
8. THOU SHALT NOT QUARREL WITH THE EXPERT.
Don’t let your anger exceed the jury’s anger – you may know the witness is flat out lying, but the jury does not have your experience. Control yourself = Control the witness. Lose your temper = lose your case. Don’t be tempted to goad the witness with sarcasm or off the cuff retorts. It is better to maintain an even, thoughtful and professional demeanor.
9. THOU SHALT NOT ALLOW THE EXPERT TO EXPLAIN HIS ANSWERS OR REPEAT HIS DIRECT EXAM TESTIMONY.
Give the expert one shot. Avoid asking “Why?” or posing questions like “How can you say?” or “What do you mean?”
10. THOU SHALT NOT ASK ONE QUESTION TOO MANY.
Know when to quit – get in and get out like a surgeon.
11. THOU SHALT KNOW THY RULES OF EVIDENCE.
For example, in cases where an expert deposition has been videotaped pursuant to notice given under CCP 2025.220 (reserving the right to use the deposition at trial), then under section 2025.620, you may introduce any part of that videotaped deposition to impeach, even though the witness is available to testify in person. See Evidence Code sections 720-724, 801-805, and CCP section 2034.
12. THOU SHALT KNOW THY JUDGE AND HOW THEY RUN THEIR COURTROOM.
Watch the judge in action a few weeks before your trial date, and talk to your colleagues who have tried cases in front of the judge.
Talk to the courtroom staff about the judge’s likes and dislikes.
Read the rules for the department, and consult California Courts and Judges (James Publishing, 2007-2008), which takes note of judicial temperament, demeanor, and particular rulings.
13. THOU SHALT REMEMBER THESE TEN TIPS FOR THE DIRECT EXAM OF YOUR OWN EXPERT WITNESS.
1. Tailor your expert’s credentials to the case.
2. Do not lead your expert; rather ask short, clear, open-ended questions. Do not ask your experts to describe their OPINIONS regarding the case. Rather, ask them to describe the CONCLUSIONS reached step by step so the jury reaches the same ones.
3. Do not wait until the last minute to design your demonstrative exhibits for the courtroom.
4. Test the effectiveness of your exhibits before trial.
5. Make sure the expert defines the terms used during testimony. Plain language is better.
6. Be cautious with video depositions; they can get very boring, very quickly.
7. Do not forget to “audition your experts.” Determine which of your potential trial witnesses can best tell your client’s story to the jury.
8. Do not let your experts use overly complicated speech; refer to “the car,” not “the motor vehicle.” People do not “exit their vehicle,” they “get out of the car.”
9. Do not think you can just “wind ‘em up and let ‘em go.” You are not looking for a ten-minute speech from your expert that leaves the jury snoozing.
10. Make sure the expert is objective, concedes what needs to be conceded, and diffuses the weak points of your case.
John M. Feder is a partner with the San Francisco firm of Rouda, Feder, Tietjen & McGuinn, and handles catastrophic injury and wrongful death cases on behalf of plaintiffs. John is a past president of Consumer Attorneys of California, and a past president of San Francisco Trial Lawyers Association. He speaks on trial preparation and personal injury litigation statewide.