Seven Tips for Cross-Examining the Plaintiff’s Expert
1) Know the elements of the plaintiffs’ case. In almost every case involving some professional or technical issue, the plaintiff must hire an expert to address the elements of the cause of action. Make sure you know what the plaintiff is trying to prove. You won’t be able to organize a good cross without knowing the plaintiff’s objective in closing argument. Some of your best cross-examination testimony will come from attacking the element or elements on which the expert is weakest.
2) Know the elements of your affirmative defenses. In the same way, you need to stay close to the elements you need to prove for any affirmative defenses. Although you will most likely have evidence from your own expert to support your defenses, any testimony from the plaintiff’s expert that supports your theories will be persuasive. Unless the expert is over-reaching, you should be sure to bring out the obvious concessions. If they don’t concede your obvious points, then you have good material to attack credibility during argument.
3) Be aware of the juror attention curve. The jury’s attention is always high at the beginning of the direct examination and trails off the longer the examination goes. When you begin your cross, you’ll have their attention again for a few minutes. You need to begin with something impactful and interesting. The longer the examination goes, the harder you will have to work to make your points come across. Because no cross-exam lasts less than the attention you will get from the jurors, be mindful of some methods for bringing them back from the daydreaming that always occurs. Walking directly toward the jury box as you speak, raising your voice or inflection and making eye contact can be a highlight on the testimony. In addition, long pauses of silence can cause jurors to wonder why nothing is happening. The next words out of your mouth will be listened to with more focus after that. Whispering to co-counsel always perks up jurors. They will want to know what you are talking about and what question is next. Demonstrative exhibits are always helpful if used sparingly. On the other hand, information overload is a problem. Don’t overdo demonstratives and vary the method (blow ups, PowerPoint, mock ups). Finally, my favorite way to keep the jury focused is to simply write down the points of testimony you want them to remember on a dry erase or marker board.
4) Examination outline organization. Your outline must start with something impactful, but the flow must also make sense. Organizing your cross around the plaintiff’s elements is a good place to start. Go from the weakest testimony to the strongest; most impactful to least impactful, or start with the points that must obviously be conceded. It also never hurts to recap the points at the end. If plaintiff’s counsel objects to the testimony being repetitive, or cumulative, they only highlight to the jury the points you are making.
5) Impeachment material. We’ve all learned you should never ask a question you don’t know the answer to, there are sometimes exceptions to that. Cross-examination of the plaintiff’s expert is not one of the times for an exception. As you prepare your outline, every question should have a reference to a document or deposition transcript page that supports the answer you want. The key here is to maintain control of the witness and not let him stray with his answers. The documents and deposition transcripts are your leash to pull tight if the expert ever gets out of line. Snap the leash hard a few times early in the exam and the expert is yours for the duration.
6) Non-leading questions are sometimes helpful. With solid impeachment material, open-ended questions can give the witness enough rope for a good hanging. For example, if you know an expert has limited experience on a particular issue, let him tell the jury.
– Q (leading): Mr. Expert, only twice in 300 cases you’ve testified in have offered the opinion that there was a safer design available, correct?
– Q (non-leading): Mr. Expert, you told this jury you’ve testified in over 300 cases in cases involving injury from gas fireplaces. Exactly how many times have you believed there was a safer design available like you do in this case?
– Q (leading): And you’ve never once testified that the fireplace was improperly used.
– Q (non-leading): Can you tell this jury how many times you’ve placed responsibility at the feet of the person who was using the fireplace?
7) Win the credibility battle. Your credibility is the best thing you have going for you in every case. Don’t lose it with the expert. This means you must make obvious concessions. The expert was hired in most cases because he is the most knowledgeable person the plaintiff could find on the subject. He is going to testify about things that you likely have no response to. Your time to put it in context is during closing. Don’t pick a fight you can’t win or it will hurt you in the long run. But bury your concessions in the middle to last half of the examination, when the jury is paying the least attention.
Original article can be found at DRI Today.