Posted by William Lightner, Esq. on Wednesday, July 13, 2011
An Expert Witness's Guide to Preparing for Cross-Examination
Litigators love to annihilate the opposition’s Expert Witnesses.
Techniques for impeaching experts are taught in law school. Courtroom tactics aside, the appeal is downright Limbic. Think hunter not gatherer.
In the cage-like confines of the witness box, the expert needs to be ready for the attack, and ideally to fend off the aggressor by redirecting the force of the attack rather than opposing it head-on. Here you should start thinking about Aikido instead of boxing.
A neurobiologist would tell you the calories burned and the stress hormones released during this face-off is no different from one between primordial predator and prey.
Here are some basic tips an expert witnesses should consider in preparation for this battle of wits and temperament.
The Expert’s Preparation for Cross-Examination
A good start is to read an Opine Journal article written for lawyers by veteran litigator Charles “Chip” Rice, a partner at Sartsis Friese LLP. It provides expert witnesses an inside look at the mind of a potential adversary, offering clues about arming for the onslaught with potential countermeasures. Expert witnesses should think deeply about Mr. Rice’s advice to his colleagues as they prepare for their day in court.
Here are a few other thoughts to consider:
This is job one. An expert who relies upon their resume and reflexes is easy prey. Read eveything available to you, and then do homework where questions arise without answer. You should know the discovery documents backwards and forwards. Preparation builds confidence.
Take the time to role-play with tough cross-examiners in advance of the trial. Practice with other experts if your attorney/client isn’t available.
BEFRIEND THE JURY
Make eye contact with jurors when answering questions about inconsequential matters under direct testimony (e.g., about your qualifications) so they don’t feel manipulated when you look at them during cross-examination.
Maintaining grace under fire is imperative. If you were to view the expert’s role as a teacher enthused with their field, when under cross-examination, you want to be viewed as a patient teacher who must deal with a difficult student. Be neither hostile nor dismissive.
SHOW YOU’RE PREPARED
Refer to exhibits by name when testifying about them; it impresses judges if not the jury.
MAINTAIN YOUR CREDIBILITY
Rehearse short declarative sentences for use when confronted with obvious and undeniable weaknesses in the case. Denying the obvious will surely undermine your credibility while admitting the obvious could undermine an attorney’s attempt at melodrama.
Mr. Lightner is an attorney and real estate entrepreneur with wide-ranging experience. He consults on fair business practices involving the treatment of real estate investors by their investment sponsors. He manages Opine, recruits experts and tracks down experts in the most arcane aspects of California real estate.