Law360 recently published two articles (Law360 subscription login required) reminding attorneys that an important part of trial strategy is to not forget about preparation for cross-examination of an opposing expert. With this reminder fresh in the minds of your opposition, it's important to prepare your own expert for some of the tactics that may be deployed against them during cross-examination. These preparation strategies are particularly important if you're working with a newer expert or someone who doesn't act as an expert witness on a regular basis (such as an academic).
Remind your witness to keep a calm demeanor in the face of cross-examination. Both articles heavily advocated for a cross-examining attorney to try to get the expert witness to lose his or her temper on the stand. They suggested that this could make the witness appear hostile or lead the jury to question the expert's impartiality.
Encourage your expert to carefully consider each question that is being asked and respond appropriately without getting caught on a roll. Both of the Law360 articles suggested leading the witness down a path of questioning where the expert would be inclined to repeatedly answer "yes," and then ask a question the expert might normally answer negatively. The articles suggested it could throw the expert off to have to answer "no" after a long series of "yeses."
Trying to trip up an expert by appearing to agree with viewpoints contrary to the expert's own opinion was another tactic suggested by the articles. As before, prepping your expert to take time to mentally evaluate each question before answering will also help her or him to avoid accidentally agreeing with something contradictory to their original opinion. This is particularly important if the cross-examining attorney attempts to lead your expert down a path of hypothetical scenarios.
Finally, be aware of any information that may support your opposition's stance or any potential weaknesses in your expert's testifying history. Another stratagem suggested in the articles was for an attorney to try to highlight these potential pitfalls during cross-examination, so it is imperative that your expert be prepared to address and de-emphasize conflicting information.
Lindsey Dean is with Veris Consulting, Inc., in Reston, Virginia.
Keywords: expert witnesses, litigation, preparation, cross-examination, testimony