TAKING ON THE BIG GUNS
Cross-Examination of Opposing Experts
By Raymond P. Johnson
Consumer Attorneys Association of Los Angeles
I. Introduction
Every fight has its moment. Trials are no exception. When your opponent's "hired guns" show up, be ready. Some are faster, smarter, better prepared than others; some are known for fancy shooting and trick shots. Know them; have a plan; and keep the sun to your back.
Know yourself too. Be yourself. After all, that's all it is: You against them. Use your own style, and don't' break from it. Stay center stage; control the fight.
Style aside, however, there are two types of expert cross-examination. The first discredits. Here, attack the expert's opinion through inconsistencies, biases and improper assumptions. The second seeks agreement with or support for the conclusions and opinions of your own experts.
Using either type1, realize that the cross-examination of experts is always a vulnerable time for trial lawyers, even the best among us. You have little real control over the experienced expert during cross-examination. Many are loose guns and don't scare easily. Start (and finish) with very tight questioning; lead, lead and then lead again.
Never give the expert a soap-box; he will use it to pound away at his opinions, conclusions or his reasons for reaching them. Almost never start a question with "how" or "why." If you use a non-leading question, make sure you know the answer ahead of time, either because you have his prior testimony, or because the answer is unequivocal and obvious.
Be aggressive; certainly more aggressive than you ever would be with most lay witnesses. Juries are far less likely to sympathize or empathize with a professional expert who is being paid (big) bucks to express opinions. In addition, many jurors are entertained and remember an attorney's shoot-out with any expert who is misconstruing facts or being evasive. Just make sure – you stay standing at the end of the gun fight. Take careful aim, and accurate shots, and make important points. Remember you can always link up those points later in closing, when the expert has "left Dodge."
II. Supportive Cross-Examination
Whenever possible, establish first that the opposing expert agrees with your expert on several points. This focuses the jury on the "real issues" and suggests that the opposing expert's testimony is not particularly astute or revealing.
This tactic is especially helpful when the opposing expert has a great deal of general expertise in the field and an impressive résumé. Essentially, you are diminishing the halo effect and focusing the jury on the one or two points of real controversy.
III. Cross-examination That Discredits
You can win or lose the whole shooting match here. The idea is to discredit. Use a direct attack on the expert himself, such as bias or lack of qualification, and/or an assault on his opinions by emphasizing erroneous assumptions, flaws and reasoning or failure to consider all facts. For example, if appropriate, pursue him about the specifics of his testing procedures, how much care was used to prevent error, the type of test equipment used and its calibration, the possibility that the test was not conclusive, differences between the test conditions and the real world, and other such questions. Many times, you can show that his opinion would likely be different if a small change in conditions were made, and that some of those opinions are based at best on fragile assumptions.
A. Attacking Qualifications, Integrity and Credibility
When possible, show that the expert lacks qualifications needed to testify about the specific matters at issue. Of course, the more experienced the expert is, the less effective this can be. Depending on how well your opponent introduced the expert and the expert's experience on the specific issues, you may be able to show that the expert's background has the wrong focus. For example, an alleged design expert may have extensive experience designing handguns, but not the rifle at issue in your particular case.
Often, experts have given testimony over the years on a wide range of subjects. You can exploit this. Emphasize for example, that the expert has offered opinions in earlier litigations on toasters, tires, cigarette lighters and ladders, as well as cars, trucks, and airplanes. Caste doubt on the expert's depth of experience in the particular issues of your trial. Paint him a "jack of all trades"; master of none.
Often an expert may testify almost exclusively for the defense. When possible, show that expert is a paid testifier who gives defendants what they need. You can even suggest through questioning that the defendant knew this expert would express desired opinions to ensure lucrative work as a "defense expert" in the future.
B. Confronting Actual Opinions
Always carefully monitor an expert's direct examination. Watch for mistakes, and pounce on them during cross. For example, if your opponent brings the expert to the edges of his expertise (or beyond), exploit that by slamming those points home on cross.
When your opponent doesn't give you that opportunity, try to show that the expert had inadequate information to form all or some of his opinions. Establish for example that he was not privy to certain data (photographs, reports, etc.) or that he failed to consider other important facts in forming his opinions.
When an the expert relies on the opinions of another expert to form his own opinions, he gives you an opening. Attack by emphasizing that he really does not know the full basis for the other experts' conclusions. For example, the expert medical testimony of a non-treater may be based on the information and conclusions of a treating doctor. Attack by emphasizing that the testifying expert really does not know the foundation for the first doctor's conclusions. Point out that a competent medical professional would examine the patient before offering a diagnosis, prognosis, opinions on causation or recommendations about future treatment.
Another line of attack: Try to find an accepted treatise that contradicts the expert's opinions or methods. This is especially potent if the expert agreed at his deposition that the treatise was competent or authoritative in the particular field.
Whenever an opposing expert's opinion is based on contested facts, point that out during cross-examination. You may even get an experienced expert to admit that his opinion is based on facts that may not be true, and that indeed his opinion would change if the facts were different.
In this regard, if opposing counsel used questions or hypotheticals during direct examination that were based on disputed facts, consider using a hypothetical of your own on cross to show how the expert's opinion would change if the facts were as your client contends. If the opposing expert refuses to admit that his opinion would change, even if the facts were different, you can use that in closing to argue he would hold the same opinion no matter what the facts were.
Whenever possible, attack with an impeaching instrument; use a transcript of the expert's prior testimony, a videotape that shows the errors of the expert's ways, or a treatise authored in whole or part by the expert. First, close off any avenues of escape. Get the opposing expert to agree that the facts and situations at issue are substantially similar with those surrounding his earlier comments, depictions or opinions.
The expert's confrontation with his own conflicting past statements should be clear and unavoidable when you finally bring it up. Always keep tight control of the questioning however when using a document to impeach an expert. Pose only closed questions; give him no chance to explain, elaborate, slip away or otherwise de-focus your cross-examination.
IV. Questioning Strategy
Unless you are totally familiar with the science, engineering or other expertise that form the basis of the expert's opinion, do not verbally spar with him in those areas. That's attacking an enemy on his own ground. Not a great plan. He probably knows more about the subject matter than you do, and his knowledge runs deeper. Therefore, pick your one-on-one confrontations very carefully and keep the focus of your challenge very narrow. If you hit your target, don't try for a kill. Instead, take your wins and use them later with other witnesses, or better yet in closing.
However, if you ever find yourself verbally sparring with an expert, know you are in potential trouble, and keep the vocabulary at the jury's level of understanding. That way the jury will understand your fight, and in a close contest, award you more points. If you use only understandable terms and the expert makes the mistake of relying on technical jargon, you will look good, and the jury may decide the expert is just covering up his vulnerability with confusion and hundred dollar words.
V. Conclusion
Your shoot-outs with experienced experts can give you your most memorable experiences at trial. Make them good thoughts! Keep yourself at the center of the battle. Keep the jury with you. Attack with a plan, keep as much control of the fight as possible, attempt to destroy only if you catch the expert in a simple-to-understand outright lie, and use as many of the above-described recommendations as possible. Make the sun set on the expert, not you nor your client.
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For more detailed information about specific cross-examinations of experts as well as lay witnesses, see Johnson and Eidson, Defective Product: Evidence to Verdict (Juris Publishing, New York / 2003 Supplement) at Chapter 8.
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