By James J. Mangraviti, Jr., Esq.
Introduction – Expert Witness Cross-Examination
Expert witness cross-examination can be a challenging process for the expert witness. Trials are held in order to evaluate the credibility of witnesses. Expert witness cross-examination is allowed in order for opposing counsel to challenge the credibility of the expert witness and the expert witness’s opinions.
Expert Witness Cross-Examination – Techniques Used by Opposing Counsel
During expert witness cross-examination lawyers can be expected to use a number of classic techniques when questioning the witness. These include:
Leading Questions. During expert witness cross-examination lawyers are trained to ask leading questions, where the only appropriate answer is “yes” or “no.” For example, a lawyer might ask, “You never reviewed Dr. Smith’s deposition, did you?” That’s a leading question where the answer to the question (the witness didn’t review the deposition) is suggested in the question. A non-leading way to elicit similar information would be for the lawyer to ask a question such as, “What depositions did you review?” Lawyers are trained not to ask open-ended question during cross-examination in order to keep tight control over the witness.
Only Asking Questions Counsel Already Knows the Answer To. When conducting cross-examination of an expert witness, lawyers are trained to only ask questions they already know the answer to. This is consistent with the goal of cross-examination. That goal is to bring out points favorable to your side of the case, not to learn new information. The most common sources lawyers use to determine how an expert witness will likely answer a cross-examination question are the expert’s deposition transcript and his/her report and/or disclosures. Other sources include the expert’s report or transcripts from other cases, learned treatises, the expert’s publications, the expert’s CV, and the expert’s web site.
Impeachment With Prior Inconsistent Statements. If an expert witness answers a cross-examination question inconsistently with what he/she has stated in the past, the expert will likely face impeachment. Impeachment in this sense (Not the Donald Trump/Bill Clinton/Andrew Johnson sense) means being confronted with a prior inconsistent statement. When so confronted, the idea is to leave the jury to draw the conclusion that the expert was either lying in the past, or is lying now – either way that expert is a liar.
Expert Witness Cross-Examination – Can The Lawyer Go Too Far?
Expert witness cross-examination can be intense. Lawyers are paid to win and can be expected to zealously challenge an opposing expert’s credibility at both deposition and trial. Trial lawyers are generally given wide latitude to ask questions of an expert witness that seek to challenge the witness’s ability and propensity to testify truthfully. That said, unlike depositions, a trial is subject to adult supervision – namely a judge. That judge will exercise his/her discretion and apply the local rules of evidence and procedure to the facts at hand to decide what questions a lawyer can and cannot ask during cross-examination.
The lawyer takes a couple of risks when aggressively cross-examining an expert witness. The first risk is that the lawyer can come across as a jerk who is being unfair to the witness. This may not sit well with the jury.
The second risk is an admonition or reprimand from the judge. Depending on the circumstances, such an admonition can have significant consequences. In a recent case reported in the ABA Journal, a judge declared a mistrial after a lawyer accused the opposing expert of having “testi-lied” after the expert while testifying appeared to have contradicted the contents of his own report. The lawyer in question was eventually censured by the Supreme Court of the state for violating an ethics rule prohibiting lawyers from stating a personal opinion as to the credibility of a witness.
Conclusion
Expert witness cross-examination can be a challenging endeavor. Experts can expect well planned out leading questions which are designed to chip away at the expert’s credibility. Lawyers can, however, go too far during expert witness cross-examination. When a cross-examiner goes too far, he/she risks blowback from both the jury and the judge.
About the Author
James J. Mangraviti, Jr., Esq., has been teaching expert witness cross examination skills for over 25 years and has written extensively about expert witness cross-examination. He is a Principal of SEAK, Inc – The Expert Witness Training Company. Jim has been retained to train experts for the FBI, SEC, IRS, DoD as well as leading firms, corporations, and professional associations. He is the co-founder of SEAK’s National Directory of Expert Witnesses, the #1 rated expert witness directory. Jim can be reached at 978-276-1234 or jim@seak.com. For more information on SEAK, Inc. – The Expert Witness Training Company, visit www.testifyingtraining.com