Repeat the Question
After a long, nonresponsive answer, just repeat the question. Do it slower, quieter, and with pausing. “Doctor…she waited…three weeks…to come see you…true?” If you get another long answer, perhaps you do it a third time, but that is probably the limit. You could ask the court to strike the answer, but it is much more fun and effective to use repetition.
What I would see often with this exchange was the attorney getting more and more exasperated with not getting the clean, one-word response. Do not worry. The jury knows the answer. I once told two attorneys that I was going to create cards for the jurors like those used to score gymnastic events. Instead of numbers, the cards would read, “We get it!”
“So, doctor, the short answer to my question would be ‘yes’?” “Doctor, you’re answering more than I am asking….She waited three weeks to see you, correct?” “So, Doctor, July 26th is not three weeks after July 5th? That’s all I’m asking.”
Ask “The Answer Does Not Matter” Questions
These are questions that are more important than the answers. These are questions that the jurors know the answers to. For example, in slip and fall cases, questions like these:
“Professor, you agree that as we sit here today, there are people slipping and falling all over the world?” “And would you also agree that sometimes people trip and sometimes people fall, and it is simply no one else’s fault?”
There are only three possible answers to the questions above: “Yes,” “No, I don’t agree,” or “I don’t know.” And the jury knows that any answer other than “yes” is the wrong answer. Likewise, if your expert has done more than the other expert in terms of gathering information, you can ask questions on cross like these:
“Doctor, you would agree that more information is better than less information?” “You agree that your examination should be thorough, true?”
“Yes or No, Just Yes or No!” Questions
This is a technique that is rarely effective. The attorney declares to the expert that all of the questions can be answered “yes” or “no.” First, if I were on the other side, I would object to this. Second, it is rarely true, unless the attorney is really precise. Third, it makes it appear that you are afraid of the witness.
The Trial Dynamic
Beware the advocacy instructor who says “always” or “never.” The trial of a case is art, not science. The great advocates (to paraphrase Shakespeare) fit the cross to the expert, the expert to the cross. Not all techniques work all the time.
The jury does not know your history with the expert. They were not at the deposition, and they simply cannot understand why you appear so agitated with the expert. Remember, the jury is always one step behind you on this.
Tailor your cross accordingly. With two paid opposing experts, I usually covered compensation with my expert near the start of my direct. I wanted to clear the air first before I moved to the opinion. When I was crossing the opposing expert, I usually kept the money bias questions in my back pocket. I would pull them out when the expert could not answer simple questions. This juxtaposition helped show the compensation bias.
The Last Word
Always remember that the expert will be long gone when you do your closing. The expert cannot say anything. Comment on how the expert was unable to answer simple questions.
A Favorite Story
Some judges might frown upon this. I quite enjoyed it. After several tries to get a short answer:
Counsel: “Professor, you’re wearing a white shirt?” Opposing Counsel: “Objection! Relevance!” Counsel: “Your Honor, I just wanted to see if he could answer one question ‘yes’ or ‘no.’”