By James J. Mangraviti, Jr., Esq.
Introduction
Expert witness cross-examination can be the part of serving as an expert witness that expert’s most worry about. It shouldn’t be. A properly prepared and trained expert witness can easily survive and thrive during cross examination. In fact, for a well-trained and prepared witness, expert witness cross examination can actually be enjoyable.
Understanding Expert Witness Cross Examination
In order to excel during expert witness cross-examination, it is important to understand the goals of the opposing counsel. Those goals are likely to make a few points and hopefully cause the jury to in some ways doubt or dismiss the expert’s testimony.
It is said that great cross-examiners are born to be such. There is truth to this. However, in my experience, the biggest determining factor as to how difficult expert witness cross examination will be for the expert witness is how much and what kind of ammunition the expert has given the other side. As an experienced trial lawyer once told me, “I don’t destroy experts on cross, they destroy themselves.”
It is really easy to destroy an expert on cross if the expert has given me the fodder to do so. I often state while training experts that I could teach a bright middle schooler how to do so in about an hour.
Common avoidable mistakes we see that can lead to an implosion during expert witness cross examination include:
- Padding or puffing an expert’s CV. “I see you claim on your CV to be nationally known. Can you tell me how many of the 350 million people in the United States have ever heard of you?”
- Posting/Publishing dumb stuff online. “This is your blog post where you stated that jurors aren’t smart enough to be entrusted with medical malpractice cases, isn’t it?
- Using ill-conceived marketing language. “As I understand it, you guarantee satisfaction such that if your retaining lawyers doesn’t like your opinion, you will change it to whatever the lawyer wants you to say?”
- Testifying outside of your true area of expertise. “You are saying that brain surgery in this instance would have been successful, but we can all agree that you ain’t no brain surgeon, can’t we?
- Rushed/low budget opinions. “You would agree with me, would you not, that you weren’t given the time and resources you would have liked to have had prior to forming your opinion?
- Letting the lawyer who retained you put words in your mouth. “So, you say that the harm was proximately caused by the defendant’s actions but you don’t even know what ‘proximate cause’ means? You just used that term because the lawyer who is paying you told you to do so, right?”
- Not doing your homework. “You never reviewed the pre-accident medical records which showed 5 years of complaints of back pain, did you?
- Exaggerating. “As I understand it, it is your testimony here, under oath, and as a 54-year-old human being that you have never told a single lie in your life, is that correct?”
- Inconsistency. “Well, you are testifying under oath in this case that ATVs are inherently dangerous but you in fact own one and let your 10-year-old grandson drive it, isn’t that true?”
- Failing to back up your theory. “You didn’t cite one peer reviewed study to support your opinion, did you?”
How to Excel During Expert Witness Cross-Examination
Below are some basic rules for how to perform at a high level during expert witness cross-examination.
- As stated above, don’t give the opposing lawyer the ammunition to shoot you like fish in a barrel during your expert witness cross examination. You should provide well-reasoned and strongly-based opinions well within your expertise.
- Listen very carefully to the question. You can’t truthfully testify unless you understand exactly what you are being asked. You will need to focus on each and every word of the question with a particular ear for absolutes, mischaracterizations, and pejorative terms.
Q. What are the biggest weaknesses in your case?
A. I don’t have a case, counselor.
- Tell the truth. Your job during expert witness cross examination is to tell the truth. Your job is not to win the case. Your job is not to argue the case. You are an advocate for your opinion, not the party that hired you.
Q. You wouldn’t be here today if you weren’t being paid, isn’t that true?
A. True.
- Be prepared to take your lumps and don’t be evasive. During expert witness cross-examination, the deck is essentially stacked against you. The lawyer will be asking leading questions and trying to essentially use you as a prop and punching bad. Furthermore, a good lawyer will only ask you questions they already know the answer to – for example based upon your previous answers under oath at deposition. This all means that opposing counsel can be expected to make some points during your expert witness cross examination. You will be best served by making required concessions readily so that you don’t look like you have a dog in the fight.
Q. You never physically examined the plaintiff, did you?
A. That is correct.
5. Don’t take it personally. Keep your nerve and don’t let anyone see you sweat during your expert witness cross-examination. The calmer you stay, the better you will perform and the more credible you will appear to the jury. Both you and the cross-examining lawyer are doing their jobs. Expert witnessing is not for the thinned skinned. Take your hits and don’t take it personally. If you get very good at expert witness cross examination you may at some point receive the ultimate compliment. That is where a lawyer who cross examined you in the case at hand is so impressed with your performance that they later hire you as their own expert witness for a future case. Opposing counsel will only do this because they are professionals and did not take your doing well against them personally.
Conclusion
Those who understand expert witness cross examination and follow the above suggestions will be well on their way to excelling during expert witness cross examination.
About the Author
James J. Mangraviti, Jr., Esq., is an expert witness cross examination thought leader. He is a Principal of SEAK, Inc – The Expert Witness Training Company. Since 1996 Jim has trained many thousands of expert witnesses on report writing, testifying skills and practice management/business development. He has been retained to train experts for the FBI, SEC, IRS, DoD as well as leading firms, corporations, and professional associations. Jim has co-authored numerous texts on expert witnessing. 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