TRIAL PRACTICE
Direct and Cross-Examination of Experts

By Mark A. Drummond

Although the general principles of direct examination and cross-examination also apply to experts, those who testify as experts create additional challenges for the advocate. Simply stated, you want jurors to follow your expert and to disregard the charlatan on the other side.

Direct examination. There are two hurdles to expert direct examination testimony. The first is to convince the jury that your expert is simply better than the other expert. The second is to make the jury actually understand the medicine, science, or engineering behind the expert opinion(s) at issue. Below is a direct examination checklist:

  • You and your expert—be teachers! Your greatest role in the courtroom is that of the advocate, but in cases in-volving experts, your second- greatest role is that of the teacher.
  • Give your advocates the tools they need. Experts must be comfortable with the exhibits. Jurors must be able to find evidence in exhibits easily and to show and convince other jurors when they go back to the jury room.
  • Visualize your evidence. People remember 80 percent to 90 percent of what they both see and hear but just 10 percent to 15 percent of what they only hear.
  • Never—never!—say to an expert, "Would you tell or explain that to the jury. . . ." The phrase is always, "Doc-tor [or Professor], tell us . . ." After all, you and the jurors are in this together.
  • Use this formula:
    • The introduction: "Doctor, would you introduce yourself to the jury?"
    • The teaser: "Doctor, are you here today to testify to a reasonable degree of medical certainty [or whatever magic words apply in your case and jurisdiction] as to. . . ?" He or she responds, "Yes." You say, "Doctor, before getting to your opinion, I would like to ask you about your qualifications."
    • Establishing qualification. Remember, the first hurdle to expert direct examination is convincing the jury that your expert is more of an expert than the other guy. This is where qualifications are so important. Tie the expert as much as you can to both the facts of the case and the jury.
    • Tender, if required. From this point on, you can rearrange the order of the remaining list items, depending on what works best.
    • Opinion.
    • Basis.
    • Source of information.
    • Where you differ and why.
    • Anticipating cross-examination. You know where your weaknesses are, so build what I call a "soft cross" into the direct.

    Cross-examination. Most will agree with the old saw of "constructive first, then destructive." Before you try to tear down a witness’s version or recollection, you first should extract from that witness all favorable evidence to your case.

    As with direct examination, use "headlines" to assist the jury, for example, "Let’s turn to everything you did after the accident. . . ." These headlines help orient the jury to where you are going.

    Many attorneys have a desire to start with the easy questions. In the cross-examination of a plaintiff’s chiroprac-tor, many attorneys would begin with the money bias or plaintiff bias questions. This is destructive. More experi-enced counsel will start with questions in tougher areas, many of which are constructive. They will save the easy questions for when the cross-examination goes south on them, or simply save them until the end for a good finish. Below is a cross-examination checklist:

  • Do you cross at all, or a short cross?
  • Constructive first.
  • Add bricks to your case foundation.
  • Know your "islands of safety." An island of safety is something that you have in your case that, if the expert goes south on you, you can then use to impeach. For example:
    • Prior testimony.
    • Depositions.
    • Other witnesses.
  • Learn how to ask one-fact leading questions from your islands of safety.
  • Learn the value of silence.
  • Remember tennis balls. Once you serve a good question over the net, it is in their court. So, just wait for the answer.
  • Use headlines.
  • Get rid of tags and intros; they are unnecessary fat on the beginning and end of good questions. An example of an intro is, "Professor, in reference to the accident that occurred at the corner of 12th and Broadway, you have never even been at that corner, have you?" Cut the intro: "Professor, you’ve never even been at that corner. . . ."
  • Be patient enough to use repetition. Repeating a simple, one-fact question until the other guy finally answers it is the acme of cross. The simpler, the better.
  • Remember, what was not there or what was not done may be as important as what was there or done.
  • Plan where to begin and end.
  • Use witness control devices such as:
    • Repeating the one-fact leading question.
    • "So the answer would be. . . ."
    • Move to strike as non-responsive.
    • "That is not my question. My question is. . . ."
    • "Yes or no—just yes or no."
  • Don’t ask one question too many and give the witness a chance to explain.

    The island of everything else. I like to think of the cross-examination of experts as two islands. There is the "island of expert opinion," which is a very dangerous island, and then we have the "island of everything else," which is not so bad. The primary question is whether you are going to go onto the island of expert opinion or let your expert fight there. Unless you can envision getting the opposing expert to say, "You’re right, I’m wrong," let your expert fight on that island. Consider how much headway you can make on the island of everything else:

  • Establish the things agreed upon. Experts have common areas on which they all agree. Compare their reports to find these areas.
  • Focus on things not done. Experts cannot do everything. If all they did was review records, that is an entire area of cross.
  • Point out bias, interest, or prejudice.
  • Explore sources of infor-mation.
  • Use learned treatises. Know whether you can use a learned treatise against the other side’s expert if your own expert identifies it as a treatise relied upon by members of the relevant profession.
  • Ask common-sense questions. Some questions are more important than the answers. For example, in a slip-and-fall case, "Professor, you would agree, as we sit in this courtroom, people are slipping and falling all over the world?" Now, there are only three answers to that question: "Yes," "No," or "I don’t know." Then continue: "And you would agree, Professor, that sometimes people fall, and it is no one’s fault but their own?"
  • Compare qualifications. This is especially important if your expert has more experience with a certain type of case or problem or has more ties to the jurors’ community.
  • Bring up the other expert. Experts are very wary of criticizing the other expert, especially doctors in small towns. "Now, Doctor, you aren’t saying that Dr. Jones is a bad doctor, are you?"
  • Highlight assumptions. Take the expert’s report and a yellow highlighter, and highlight all of the times the expert used the word "assume."
  • Break down jargon. Some borderline experts like to use jargon. Feed these words back to the expert, and then put it in plain language for the jury.
    FOR MORE INFORMATION ABOUT THE TORT TRIAL & INSURANCE PRACTICE SECTION
    - This article is an abridged and edited version of one that originally appeared on page 58 of The Brief, Spring 2009 (38:3).
    - For more information or to obtain a copy of the periodical in which the full article appears, please call the ABA Service Center at 800/285-2221.
    - Website: www.abanet.org/tips.
    - Periodicals: The Brief, quarterly magazine; Tort Trial & Insurance Practice Law Journal, quarterly law review; TortSource, quarterly newsletter.
    - Books and Other Recent Publications: Litigating the Nursing Home Case; Powerful Deliberations: Putting It All Together for the Jury; Financial Institution Bonds, 3d ed.; A Lawyer’s Guide to Understanding Earning Capacity Assessment and Earning Capacity Options; Misrepresentation in the Life, Health, and Disability Insurance Application Process: A National Survey; The Law of Performance Bonds, 2d ed.; Intellectual Property Law and Litigation: Practical and Irreverent Insights; Handling the Business Emergency: Temporary Restraining Orders and Preliminary Injunctions; Litigating the Aviation Case: From Pre-Trial to Closing Argument, 3d ed.; Wildlife Law: A Global Perspective; Litigating Animal Law Disputes: A Complete Guide for Lawyers; Toxic Mold Litigation, 2d ed.; Attorney-Client Privilege in Civil Litigation, 4th ed.; The Surety’s Indemnity Agreement: Law and Practice, 2d ed.; A Complete Guide to Premises Security Litigation, 3d ed.; Loan Loss Coverage under Financial Institution Bonds; Property Insurance Litigator’s Handbook.

    Judge Mark A. Drummond is a circuit judge for the Eighth Judicial Circuit of Illinois. He may be reached at mdrum-mond@co.adams.il.us.

    Copyright 2009

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