What The Rules Require For Admissibility
In preparing for your questioning keep in mind the requirements of the rules relating to the admissibility of expert testimony. For example, Rule 702 of the Federal Rules of Evidence require the following:
• The knowledge, skill or experience of the expert to quality for special treatment;
• Testimony based on sufficient facts or data;
• The application of reliable principle or methods; and
• The further the application of these principles reliably to the facts of the case.
In most cases these tests should be challenged but only after counsel has researched the area of expertise and consulted with a consultant or expert in the field to examine and flesh out challenges to the adverse expert’ s testimony. At that point counsel can explore these challenges in deposition and then at trial.
More Fundamentals
In my experience, cases are“ won” on direct. The goal of cross-examination is to“ neutralize”, shed doubt or discredit the defense. There are certain techniques that are key to this approach. They are well tested and adopted by experienced and effective trial counsel.
To start, it is important to recognize the three basic principles of your approach:
• Be realistic about what you can accomplish;
• Maintain witness control and don’ t let the witness“ off the hook” to expound on any admissions or concessions that are initially helpful but become less so by additional testimony;
• Be satisfied with modest admissions and concessions and avoid trying to make more of them after they are obtained. That is, when ahead, stop; do not push success.
The key to an effective crossexamination of the adverse expert( and most adverse witnesses as well) is control through the questions asked and the way they are posed. That is, you must use a skillset that allows you to keep the adverse witness to short, focused answers that agree with the proposition you have stated in your question. Usually, the questions are posed with a phrase followed by a word asking for the witness to agree:“ So, Dr Jones, Mr. Smith( plaintiff) did not suffer from a concussion, correct?” The answer to the question is“ Yes” or“ No” and counsel is entitled to that answer. Seldom is it beneficial to your client’ s case to allow a witness to expound on a response to a well worded question on cross-examination which is intended to elicit an admission to what the question states. Being able to phrase these questions properly to as to accomplish the goal of an admission is a skill that needs to be developed as part of your skill set as a trial lawyer.
This approach is used to challenge the accuracy of the expert’ s testimony, the assumptions relied on, or the credibility and objectivity of the witness or to gain favorable admissions of fact that help your client’ s case. The objectives are:
• To challenge the accuracy of the testimony.
• To challenge the facts or assumptions relied on;
• To challenge the witness’ s objectivity or credibility;
• To obtain favorable admissions and concessions from the witness.
Basic Questioning Techniques
Also, make sure you follow the basic questioning techniques which will allow you to maintain the required control and ensure the trier of fact follows your examination. These include:
• Use simple sentence questions.
• The question should require a“ Yes” or“ No” answer. Avoid a question which asks for an open-end response giving the witness the opportunity qualify and answer or add information that is not favorable to your client’ s case
• Obtain a responsive answer without any equivocation by the witness; that is, listen to the answer and make sure it is responsive to the question.
• Avoid technical language and“ legalese”.
• Be firm and focused in your questions.
• Avoid rephrasing if you have a good question; have it read back if the witness claims a failure to hear or understand the question.
• Do not be reluctant to ask for court assistance if the witness continues to provide non-responsive answers.
Research and Preparation Beforehand
There is so much you can and should do in preparation for cross-examination of the adverse expert. Among the tasks are:
• Know the subject matter. Study and research the area of expertise. Also, talk with consultants who can help you understand the subject matter and identify vulnerabilities in the adverse expert’ s views.
• Know the expert. Who is this witness, are there transcripts of testimony, and what is that witness’ s online presence and background. Also, look for jury verdicts which are reported and include a list of experts who have testified. This gives you information on who to contact and where to look for possible
The Trial Lawyer 15