able to help you here if the adverse expert is not following the protocol or proper methods of analyzing the subject area of his purported expertise.
These issues, if meritorious, should be handled in a hearing outside the presence of the jury, although there may be some instances where the subject to the adverse expert’ s qualifications or scope or testimony may come up as a result of the examination during trial. If the latter is the case, counsel should request a hearing outside the presence of the jury to be heard on the scope of the proffered witness’ s testimony.
Cross-Examination At Trial
Before conducting the trial examination, decide if its purpose is“ constructive” or“ destructive”. That is, are you attempting to obtain admissions from the opposing expert that will help your client’ s case or are you trying to limit the impact of the expert’ s testimony. It may be a combination of the two.
Further, be mindful of your approach by staying with simple, leading questions which limit the ability of the witness to expound on an answer and water down an admission of a fact or view favorable to your client’ s case. Indeed, make sure the witness provides a responsive answer to the question. Do not hesitate to request the court to intervene to obtain a proper response if the witness avoids providing one.
Nonetheless, once you have reached this point you should be prepared to outline your agenda, areas of questioning and key points you wish to make to do as much as you can and are able practically to“ neutralize” the adverse expert’ s influence on the case. It is important to start and finish well in this process, so select two areas for the beginning and end where you can make some headway and get the trier of fact’ s attention. Start with a couple of admissions that are helpful, then hit your areas with clear transitions from one to another so all can follow. As you reach a good point to end your examination, find at least two more admissions or key points to make with the expert, and then sit down while you hope you are“ ahead” in the process. You have made your points with emphasis!
So, be realistic about what you can accomplish during cross-examination. Keep in mind that with the expert, you are dealing with a witness who purports to know more about a subject than anyone else in the courtroom at that time. Be careful what you challenge. Direct challenges on the subject of the expertise may be difficult, so think about working around the“ edges” of the witness’ s presentation. Make your point and move on and do not risk losing the impact by asking one question too many and allow the witness to wiggle off the hook or embellish an answer that is not helpful to your client’ s case. Be satisfied with any modest success and concessions. As they say,“ Less is more.”
* Citations available on request
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The Trial Lawyer 17