Direct and Cross-Examination of Expert Witnesses

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1 Direct and Cross-Examination of Expert Witnesses Marc P. Weingarten, Esquire THE LOCKS LAW FIRM The Curtis Center 601 Walnut Street, Suite 720 East 170 S. Independence Mall West Philadelphia, PA Telephone: (215) Fax: (215) HB Litigation Conferences Trying An Asbestos Case - How To Get The AW@ January 25, 2011 Philadelphia, PA

2 I. The Strategy A. Direct Examination of Expert Witnesses Although cross-examination has become the subject of both folklore and war stories, this author believes that cases are won with direct examination rather than with cross-examination. It is direct examination, both of lay and expert witnesses, which allows a plaintiff to develop his case to bring out all necessary elements required to get the case to the jury. It is risky if not malpractice to rely upon cross-examination, even cross-examination of the most skillful and dramatic kind, to make out the prima facie elements of a case simply because cross examination is not as predictable as the direct examination of a witness. Even prior to going into the courtroom for trial however, the expert witness can be of great help to plaintiff=s counsel to help him to understand the nuances of the case. The expert can provide counsel with necessary information to understand the technical literature in the field in which the expert is testifying, to help the plaintiff=s lawyer with areas for deposition examination of the defense experts, to suggest issues or lines of questioning to utilize in the direct examination of the expert himself and also to suggest areas of potentially fertile cross-examination of the defense expert. Thus, your own expert can provide utility far beyond making out the elements of the plaintiff=s case, even though that is of course vital to success. With respect to preparation of the expert witness prior to direct examination and crossexamination as well, the expert must read his or her own report, thoroughly read any depositions which he has given in the instant matter and also review any records which are involved in the case which formulate the subject matter upon which he is giving an opinion. It is also critical that the expert must be cognizant of the fact that his direct examination testimony must be both instructive as well as simple. The plaintiff=s expert has the unique opportunity to be the first Ateacher@ of the factfinder and therefore, he must have the aura of 1

3 knowledgeability, but must also be certain that his opinions are expressed to the jury in a fashion that they are not only reasonable but also are simple and understandable. The tension arises in that the testimony, while it must be understandable to the people in the jury box, must also not seem to be condescending to them. With respect to the issue of compensation for time spent in the legal consultation, this is a mixed bag. There is no hard and fast rule with respect to this. It certainly depends upon the nature of the case, the nature of the jurisdiction and the personalities who are in the court room both inside and outside the jury box. Some lawyers feel that it is not necessary to bring out compensation issues because juries already know that highly educated professionals are entitled to be paid for their time. However, if it is gone into in great detail by a defense attorney on cross-examination then perhaps it is appropriate to do the same when his expert gets on the witness stand. It may even be most effective to have the defense expert agree that the expert testifying on behalf of the plaintiff=s charges for time were reasonable and not at all surprising. There are many different ways to prove the qualifications of the expert witness on direct examination. Although many trial judges like to have the matter stipulated to, in practice this is not very often accomplished. Each side wants the jury to hear a recitation of how their own expert is eminently qualified to give an opinion in the case. Alternatives to a stipulation to expertise is that the attorney proffering the witness read an abbreviated version of the experts credentials to the jury, or that there be a short direct examination on the issues and finally, that there be a lengthy examination with respect to the matter at hand. The author of this article has been involved in each of those various scenarios and even after many trials does not have a decided preference with respect to the appropriate technique to use. With respect to technique, one effective approach to direct examination of an expert is that the lawyer become invisible and allow the expert to command the court room on direct examination. 2

4 This is the opposite of what should occur on cross-examination at which time it should be the lawyer who commands the court room, even to the point of appearing to be testifying, making the expert take a secondary role and simply go along for the ride. The form of questions on direct examination should almost all be open and non-leading and none of the questions should be capable of being answered yes or no. The lawyer for the plaintiff wants this opportunity to allow the expert to explain and teach in his field of expertise and therefore should give him the opportunity to do it with virtually a free rein. However, if the testimony becomes too lengthy, boring, or complicated, then the lawyer should interrupt and re-focus the expert. B. Cross-Examination of Experts ACross-examination is probably the most publicized and least understood aspect of trial procedure... it is an art which can be learned.@ Anatomy of a Personal Injury Lawsuit, ATLA Press, Dudnik, Robert M. (1978), p.153. One must be wary in the cross-examination of an expert witness for a number of reasons. To begin with, the expert is most likely smarter than almost everyone in the court room and can utilize that innate intelligence to be an adversary. In addition, the expert certainly will know more than even the most impeccably prepared lawyer about the subject area. Finally, the expert witness is not constrained by the ordinary rules of evidence in that he or she is able to go beyond giving factual data to giving opinions and is quite anxious to do just that. Do not give him that opportunity. Therefore, before embarking upon cross examination of any expert it is important to understand what the potential goals of the examination are. Cross-examination can be utilized to damage the witnesses testimony in the case, to destroy his credibility, to show that he comes to the court room with prejudice for or against one of the parties and also to contradict his present testimony with prior statements. An additional goal of cross-examination, although rarely achieved, 3

5 is to use the defense expert to bolster some of the elements of the plaintiff=s own case through cross examination. Again, as with presenting an expert on direct examination, the best way to embark upon a cross-examination is through meticulous preparation. It has already been discussed earlier in this paper that your own expert witness can be used to educate you with respect to possible areas of cross-examination. In addition, it is necessary to obtain and study prior courtroom testimony of the defense expert, prior depositions, and even prior reports by the expert which might deal with the subject matter at hand. It is almost too obvious with today=s litigation technology to state that a good start for any cross-examination preparation is to Google the witness. In addition to that technique there are hundreds of websites and trial listserves which are available to obtain information about the expert. Oftentimes a gold mine of information for cross-examination can be found in the expert=s own website which usually has been prepared for reasons other than litigation business. Finally, it is important to obtain a complete bibliography of all publications by the expert and thoroughly study any which might be close to the issue at bar. Perhaps the most difficult question to answer is whether or not you need to cross-examine at all. The best answer to this question is that you should cross-examine only if you can achieve one of the objectives discussed above. If the direct examination of the defense expert did not hurt your case, than discretion is probably the better part of valor and it is better off to simply say Ano questions, Your Honor.@ Less is almost always better than more and the best technique of cross-examining is to get to the witness out of the court room and back on the airplane. It is best to start cross-examination with a strong point and try to finish strong as well. Many lawyers will cross-examine an expert starting with the last point that was made on direct examination. This is probably not a good technique since this last point on direct is most likely the clearest point presently in the witnesses= mind due to the recency of presentation. Therefore, a 4

6 different starting point should be found. The demeanor utilized by the cross-examiner should be courteous, quiet, calm, soft spoken but yet forceful. It has been found by much trial and error as well as research that this type of approach gets more admissions and mileage from the cross-examination than does the Amad approach to cross. Usually a safe area of cross-examination is one of objectivity. Whether it be by way of bias, prejudice or even monetary interest in the case, there is usually some ground which can be gained in those areas of interrogation. Almost every expert witness can be cross-examined as to whether or not he helped to prepare the defense case or whether he has consulted with other witnesses for the defense, as most of them have. Of course, you will only know this through meticulous preparation whether it be by the deposition of the expert or other sources and it goes without saying that you should never ask a question at trial unless you know what the answer will be. Another good area for safe cross-examination is that the defense doctor in a case involving medical issues probably has only seen the plaintiff once and then usually quite briefly. You can contrast this with the fact that the treating physicians testifying for the plaintiff have a continuing course of treatment and the ability to observe the plaintiff over a long course of time. This ability to observe impacts greatly upon the credibility of opinions rendered. It is unlikely that the defense expert will ever change his conclusions on cross examination and therefore it may be better to not try and attack the conclusions, but rather to attack the qualifications of the expert to show that his conclusions do not have weight, attack the data or information provided to him to show that it is either incomplete or inaccurate, attack him based upon the limited ability to observe such as discussed above or attack him based on the bias and prejudice which has also been previously discussed in this paper. Perhaps the most important thing to remember on cross-examination of an expert is do not allow him to hurt you again. Do not give the expert a chance to repeat for yet a second time the 5

7 opinions he has already rendered to the jury on direct examination. He will gladly do that, and with a smile on his face. Also, do not ask questions that utilize the word Awhy@ because it will allow the expert too much latitude in providing answers. Rather, you must control the expert witness on crossexamination with short, to the point, direct questions which allow a controlled response. II. Conclusion Examination of expert witnesses on direct and cross is both art and science. The best way to learn how to do it, is simply to go out and do it. There is no substitute for court room trial experience in learning how to elicit elements of a case on direct and minimize damage on cross. Advanced courses in trial advocacy and seminars such as these are extremely helpful, but no amount of reading and classroom study can make up for actual trial of a case. In an article entitled AThe Art of Advocacy@, 50 ABAJ 1121 (1964), p. 1124, Sir Geoffrey Lawrence stated with respect to crossexamination the following, which over 40 years later still is sound advice. AKeep him under control. Lead him along, and then as elegantly, as quietly and as smoothly as possible, cut his throat.@ 6