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Litigation News

Fall 2023, Vol. 49, No. 1

Long Answers to Short Questions: Crossing the Expert Who Can’t Say “Yes”

Mark Drummond


  • There are five parties to any cross-examination. You, the expert, the judge, opposing counsel, and, most importantly, the jury.
  • It really doesn’t matter what four of the parties think.
  • All that matters is what the jury thinks the answer should be.
Long Answers to Short Questions: Crossing the Expert Who Can’t Say “Yes”
Chris Ryan via Getty Images

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In the musical Oklahoma, Ado Annie promises two different suitors that she will go to the dance with them. She laments her dilemma in the song “I Cain’t Say No.” The song reminds me of a phenomenon we see in court with some experts. Experts who seem to have a constitutional inability to answer simple questions with a “yes” or “no.” The causes are threefold. First are the “hired gun” experts who will say anything to earn their fee. Second are experts who think that using multisyllabic words will make them sound more expert, which is wrong. And third is counsel inviting long answers by the words we choose.

There are five parties to any cross-examination. You, the expert, the judge, opposing counsel, and, most importantly, the jury. It really doesn’t matter what four of the parties think. All that matters is what the jury thinks the answer should be.

In a past column, I outlined the template I used when crossing an expert. I look at expert evidence as two islands. There is the “Island of Expert Opinion,” which is a very dangerous island! Unless I could envision the expert saying, “You’re right; I’m wrong,” I tended not to venture onto that island. I let my own expert fight on that island, and I fought on what I call “The Island of Everything Else” (TIEE).

One TIEE topic is “things agreed upon.” Let’s say you’re defending an injury case and you know the plaintiff waited three weeks before going to the chiropractor. You ask the simple question, “Ms. Jones waited three weeks to come see you, true?”

Now what is the response in the real world? It is usually not the chiropractor slowly nodding his head in agreement and saying, “Yes, counsel…she waited three weeks.” In the real world, this usually invites a short lecture. The lecture begins, “Now counsel, it’s not atypical for soft tissue injuries to fail to manifest themselves, and waiting might actually be beneficial due to…” The expert’s answer concludes minutes later. How do you handle this?

Ask a Better Question

My question included the word “waited.” This is the opening the expert is looking for. Totally factual questions avoid the problem or at least show that the expert is overreaching.

“You recorded the date of the accident as July 5, 2022, correct?” “Her first visit with you was on July 26, 2022, true?” “Three weeks after the accident, right?”

The expert has a dilemma. Does he admit that July 26 is three weeks past July 5? Or does he try to volunteer a reason for the three-week delay. It is tougher for him to volunteer when he is asked fact questions. Also, any adverb or adjective that you inject into a question that the expert has not used in his or her report invites a long answer.

After a recent webcast I did on expert cross-examination, an expert emailed me asking how he can maintain credibility when he disagrees with the premise implied in the short, fact questions. I advised against volunteering a long, nonresponsive answer. I suggested relying instead on redirect by counsel with a question such as “You were asked about Ms. Jones waiting three weeks to see you. How does that affect your opinion?”

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!”

Other Options

“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.’”


  • Mark Drummond, “Expert Cross—The Islands of Expert Opinion,” 40 Litigation News, No. 1 (Fall 2014).
  • Mark Drummond and Laura McNally, “Expert Cross: A Template that Works,” Nat’l Inst. for Trial Advoc.(June 22, 2023).
  • Oscar Hammerstein II, “I Cain’t Say No,” Oklahoma, music by Richard Rodgers (1943).