In dealing with expert witnesses, lawyers need to focus on three phases of the trial: pretrial preparation, direct examination, and cross-examination.
Now that the table has been set through deposition, it is time to prepare the expert witness for trial using the information that has been learned through the percipient witness depositions, the subject matter, and the expert depositions, as well as any additional information that has been discovered following the depositions. It is important that the newly discovered information not change or materially modify the witness’s opinions but, rather, provide additional support or strength.
In the pretrial preparation session, the witness should be not only guided through the scope of the direct examination but also thoroughly exposed to the likely cross-examination. Expert witnesses should be reminded that they are the experts and must present in an authoritative, knowledgeable, confident, and self-assured manner, recognizing that it is extremely important that they not come across as arrogant, flippant, condescending, argumentative, or combative on cross-examination.
Importantly, expert witnesses should be reminded that, unlike in deposition, you likely will not interpose objections, except under the most egregious circumstances, because the experts must defend the opinions that they have rendered. Counsel should avoid the appearance of being overly protective, which may be construed by the jury as an attempt to “hide” something or not present all of the pertinent information. Issues that need clarification can be dealt with on redirect as necessary.
In reality, the expert’s time before the jury is limited. That said, it is important to decide what is most important for the jury to hear in addition, of course, to the expert’s opinions.
Familiarize the jury with the expert. This is accomplished by expending a fair amount of time introducing the expert to the jury. Although potentially tedious, this introduction should explore fully the witness’s background, education, and training, as well as define the areas of expertise that are being offered. You must keep this interesting, not becoming bogged down in any one aspect of the witness’s qualifications, such as esoteric topics in published literature. Although you want the witness to appear to be truly expert, you also must make the witness relatable, so do not be afraid to discuss briefly the human side of the witness, e.g., family, nonprofessional activities, etc.
At this point, as in deposition, ask the witness about the nature of the materials that have been provided to the witness for review, in addition to any information that the witness has independently discovered. Allow the witness to explain the importance of the information that has been reviewed and evaluated and how it has assisted in the derivation of the witness’s opinion(s).
The witness is now ready to express her opinions and to provide the basis for each. Again, this must be accomplished in an efficient fashion to ensure that the jury does not lose interest. Demonstrative exhibits can be helpful, as well as requesting the witness to leave the witness stand to prepare a diagram or otherwise illustrate a point for the jury. Again, this must be accomplished in an efficient manner to gain maximum effect.
The witness is now offered for cross-examination, generally without having been directly solicited to criticize the opinions of other witnesses who have already been called or who will be called later. In my view, my team is there to tell a story, not to criticize overtly the opposition, which might give the appearance of lending credibility to the opposition’s claims. The witness should, however, be prepared to offer a critique, as appropriate, if the opportunity arises on cross-examination. You may then point out during argument that the criticism was not brought out by you on direct examination of the witness but rather by the opposition on cross-examination.
Cross-examination can be a boon to your case. As is often observed, though, do not expect the Perry Mason moment during cross-examination, and never underestimate the opposition.
After determining that cross-examination is appropriate (there are times when it is not), ask the witness about areas where you and the witness agree, even if it is not a pivotal issue—just obtaining the agreement can be important. For example, agreement about the date of the contract, the contracting parties, location of the accident, the time of day, or the constituent components of a chemical compound will suffice. Again, efficiency is vitally important. The perception that there is no plan or point to the examination may prove detrimental to the outcome of your case.
Having the benefit of, among other valuable information, the witness’s deposition, you should have developed a strategy for the cross, bearing in mind that you want to avoid providing the witness the opportunity to reiterate her opinions on cross or to provide additional support for those opinions. Often, we attempt to establish a frame of reference for the witness by asking a question that begins, “On direct examination, Doctor, you testified that the condition was caused by X. Is that correct?” A good, experienced, well-prepared witness will agree with you, of course, but will also reiterate, and even expand upon, the opinion(s) already expressed. This is not the purpose of cross-examination.
Similarly, it is also a good practice not to raise issues in cross-examination that have not been covered in direct examination, which might prove problematic for you on redirect. Do not provide fodder for redirect examination.
To ensure that your examination is accomplished with maximum efficiency, and is as effective as possible, script it. That said, as with any witness, listen to the answers to your questions. Although the Perry Mason moment is rare, expert witnesses will toss out the occasional “nugget.” When that occurs, it is absolutely necessary that you are nimble, flexible, creative, and confident enough to seize the moment and to exploit the opportunity.
In trial, optics are important; and if you can enhance your case through cross-examination, then, by all means, do so. Be careful, however, that you not cross the witness simply because the opportunity is provided. It is important that you approach the examination in a civil manner and be courteous, appropriately respectful, and efficient; the court and the jury will appreciate it.
When you have accomplished your goals, dramatic or not, sit down. You are done.
Understanding the various ways in which to maximize contact with expert witnesses in various phases of the trial will maximize your effectiveness as a trial lawyer.