CROSS-EXAMINATION OF MEDICAL AND OTHER EXPERTS

Stephen G. Schwarz and Angelo G. FaraciFaraci Lange, LLP

Rochester, New York1. Introduction

Cross-examining an expert witness is one of the most challenging and exciting things we do as trial lawyers. Nothing is more rewarding than to sit down after an effective examination with the feeling that you have neutralized the opposing expert and by doing so greatly helped your case. But in order to obtain that level of satisfaction there is much work to do in preparation and developing an effective strategy.

In analyzing the challenge we must be honest with ourselves that no matter how smart we are or how much we study we are not going to be able to match the expert’s level of knowledge in his or her field of expertise. But that does not mean we are not going to try to educate ourselves to the maximum extent possible in the narrow area of medicine, engineering or whatever the specialty is regarding the relevant scientific topic. For medical witnesses we can read all of the most relevant medical literature articles on the narrow area involved in the case as well as obtain background knowledge from textbooks to help us understand those articles. We also have our own experts to help us understand complex scientific topics. Using these resources we can prepare ourselves sufficiently to attack the weak points underpinning an expert’s opinion.

This article will first discuss some of the basic legal principles involved in conducting an effective cross-examination of an expert. We will then discuss strategies and techniques that we have utilized in the past to attack the opposing experts’ opinions. As will be further emphasized below, it is important to look at each cross-examination as a unique and different experience from any of the ones you have done in the past and to utilize some but never all of the strategies and techniques that will be discussed. Less can definitely be more when it comes to cross-examination and length very rarely equates to effectiveness.

Finally, although both of us have tried a good many cases, and one of us (Schwarz) had the great opportunity to learn from the other (Faraci), each of us approaches witnesses a little differently based upon our individual personalities and comfort zones. In cross-examination like every other aspect of trial practice before a jury, you must be yourself and not try to copy someone else’s style the way an actor assumes a role. You can learn from watching others, but you need to develop your own style in using these strategies and techniques in order to make them truly effective.

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2. Pretrial Preparation

Tiger Woods is a great natural athlete. But he is probably the greatest golfer of all time not because of his natural gifts alone but because of the work ethic that he pairs with it. Similarly, no matter how good you are on your feet you will never be a great cross-examiner unless you work tirelessly to master all of the underlying facts and subject matter of the expertise of the witness.

a. Doing your homework

Today it is easier than ever to obtain knowledge thanks to the internet. Except for medical experts in medical malpractice actions in state court actions we are provided with the identity of the expert witness to be called by the opposition. The internet enables us to find out almost everything this person has done in a professional capacity including articles written and positions attained. The internet also provides us with countless options for educational materials on virtually any area of medicine, science or engineering and typically on multiple levels from basic to highly advanced. As trial lawyers we must take advantage of these tools to learn everything we can within the time frame we have for preparation so that we can adequately test the opinions of opposing experts.

Every expert opinion has some point of weakness that we can attack. Our job in the preparation stage is to find it. Fortunately, we are not alone in this search since we must hire experts ourselves to testify in the very area of expertise of the other side’s expert. This expert can be of great help but the caveat is that we must be well informed before that can happen. If you go and meet with your expert without doing your homework first the conversation will migrate to the most basic of levels. Only after you have mastered the subject matter can your expert really teach you the subtleties of the topic that will be where the weaknesses of the other expert can be found. And there are always those grey areas, especially in medicine. There is a famous story of the Dean of Harvard Medical School speaking to freshman each year and telling them that “50 % of the information that will be taught to you in the next three years is going to turn out to be incorrect. The problem is that we do not know which 50%.” Areas of uncertainty are where you want to go with experts who testify on direct as if everything in their opinion is black and white and simple. In order to find (and more importantly understand) those areas there is no substitute for thorough preparation.

3101(d) disclosure

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The days of “trial by ambush” allegedly went out when the CPLR was amended to add expert witness testimony disclosure as a pretrial requirement. However, the statute’s intent is certainly not universally fulfilled by what each side provides to the other. There are many instances in which the disclosure served is inadequate to allow for appropriate preparation. In such instances, a threat of a motion followed by a motion to compel is essential. Although many trial judges are less than receptive to such motions, they can be effective in that even their threat often leads to better disclosure. And there are cases in which relief has indeed been granted. See Syracuse v. Dio, 272 A.D.2d 881 (4th Dep’t 2000) “The responses of plaintiff concerning her expert witnesses were " 'so general and nonspecific that [defendants have] not been enlightened to any appreciable degree about the content of [the experts'] anticipated testimony' Chapman v State of New York, 189 AD2d 1075, quoting Saar v Brown & Odabashian, 139 Misc 2d 328, 334; see also, Brossoit v O'Brien, 169 AD2d 1019, 1020-1021)”.

This is particularly important in medical cases where causation is or may be in issue. For example, an expert disclosure which tersely states that “the alleged incident is not the cause of plaintiff’s injury” should never be accepted as sufficient. If the defendant’s expert is going to testify to another cause of the injury it is essential to know more about it before your expert testifies so that it can be considered and discredited during your direct case. If you do not learn of it until the defense case begins and your witnesses have already testified it puts you at a decided disadvantage in preparing for cross-examination.

In order to properly prepare, you must not only know what the expert’s opinion is going to be but also the factual underpinnings upon which each opinion is based. This includes the identity of studies published in the medical literature, if the expert claims to rely upon such studies. See Section 4(e) below.

b. Federal Practice

There are obviously differences between state and federal practice but nowhere is the contrast more stark than expert disclosure during pretrial preparation. Not only does FRCivP 26 require a detailed expert report and significant information about prior testimony and compensation, but you get to actually depose the expert before trial so that you can be fully prepared for cross-examination. Of course, all of this information comes at a significant price, literally. But in cases that are eventually tried it is invaluable to have the report and deposition to help prepare for the cross-examination of the opposing expert.

3. Legal Basics

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a. Introduction

There are certain legal rules that apply to all cross-examinations and others that apply to expert cross-examinations in particular. We will briefly review these below.

b. Phrasing and ordering your questions

Cross-examination is essentially a series of statements made in the form of questions to which you know the correct answer and can hurt the expert if he or she disagrees. You should rarely if ever ask a question in any other format when cross-examining a witness. For example:

Q: In treating patients you are required to document significant medical events, right?

Q: One of the reasons for that is to document what you have done so it is available for review where pertinent, correct?

Q: The other reason is to communicate information to other health providers involved in the patient’s care, is that right?

Q: In the course of your practice you read and interpret notes and reports every day, is that a fair statement?

It is important to phrase your questions in an instantly comprehensible and uncomplicated way. This makes it more difficult for the witness to avoid answering the question. It is also important to limit each question to a single point or fact. Asking long rambling compound questions is like giving the witness a free pass to avoid answering without the jury appreciating the avoidance and holding the witness accountable.

Leading questions can also be asked to a hostile witness called during your direct case so long as a foundation is laid for the adverse relationship. In the case of an adverse party, who is per se hostile to your case, leading questions are always appropriate. See Richardson on Evidence, 11th Edition, §6-228.

Avoid using equivocal words that will also give the witness room to equivocate. For example: Asking: “That was a pretty big tumor?” allows the witness to answer “Well I am not sure what you mean by ‘pretty big’”. You must be literal and specific so there is no room for escape. “The tumor in the plaintiff’s brain measured 5 cm by 3 cm by 4 cm didn’t it?” “Yes”. “That is bigger than a golf ball isn’t it?”

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Your leading questions should be grouped into chapters that lead to a point you want to make. You should have a number of chapters for your cross-examination. We will discuss arranging these chapters when we discuss strategy below.

c. Foundation

One of the important legal principles to keep in mind is that an expert’s opinion must have a proper foundation. It is well settled that the facts on which opinion evidence must be either found in the record or personally known to the witness. Hambsch v. N.Y. City Transit Authority, 63 NY2d 723, 725 (1984). The Court of Appeals has recognized two limited exceptions to this rule, holding that an expert witness may rely on out-of-court material only if: 1) it comes from a witness who is subject to full cross-examination at trial, or 2) “it is of a kind accepted in the profession as reliable in forming a professional opinion.” Id. at 726, quoting People v. Snugden, 35 NY2d 453, 460-461 (1974). In order to qualify for the “professional reliability” exception, there must be evidence at trial establishing the reliability of the out-of-court material on which the expert relies. Hambsch, 63 NY2d at 726. Where an expert cannot or will not identify the studies on which he relied in forming his opinion, there is no evidence to establish their reliability, and the expert’s opinion is inadmissible. Id. at 725-726. If the deficits in the expert’s testimony are revealed after he has stated his opinion, the testimony should be stricken. R. Farrell, Prince, Richardson on Evidence §7-308 at p. 470-471 (11th ed., 1995).

In Hambsch, for example, the issue at trial was whether the plaintiff had sustained a “serious injury” within the meaning of the “No-Fault Law.” The plaintiff claimed that she met the serious injury threshold because she had sustained a fracture. At trial, the only evidence of a fracture was the testimony of the plaintiff’s physician that plaintiff was suffering from spondylolistheses and that spondylolistheses is caused by a fracture. The basis for the latter opinion was the physician’s discussion with a radiologist, who held that opinion based on an unidentified study. On appeal, the Appellate Division found the opinion testimony of the physician to be inadmissible, and dismissed the complaint. The Court of Appeals affirmed, noting that the plaintiff had presented no evidence of the reliability of the out-of-court material used by her physician as the basis for his opinion. Hambsch, 63 NY2d at 726.

In Santiago v. Veloso, 3/1/93 NYLJ 32, col. 1 (Sup. Ct., Nassau Co., 1993), a medical malpractice case, the court ordered a new trial where the defendant’s expert testified that there was “fairly extensive literature” from Germany, England and the U.S. supporting the defendant’s use of ordinary table sugar to treat a surgical wound infection. On cross-examination, however, the expert was unable to identify any controlled studies concerning the use of sugar in wound infections published in the U.S. prior to 1985, the

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date of the alleged malpractice. Because the expert “did not identify or establish that any of the published data or literature upon which he relied is of a kind accepted in the profession as reliable in forming an expert opinion,” the court held that his testimony “cannot be afforded any weight.” Id. See also, Nickerson v. Winkle, 161 AD2d 1123, 1124 (4th Dept, 1990) (in action against a well operator for trespass and unfair pooling, trial court erred in failing to require plaintiff’s expert, on cross-examination, to specify the data, sources and other criteria for his opinion); Matter of Frontier Park v. Assessor of the Town of Babylon, 2000 WL 622579 (Sup. Ct., N.Y. Co., 4/17/2000) (in tax certiorari proceeding, petitioner’s expert’s failure to specify data underlying his opinion on valuation deprived respondent of any real opportunity to cross-examine him regarding the data’s applicability to the proceeding and the comparability of the sales therein to the subject properties).

Cross-examination seeking the factual basis of an expert’s opinion and must be contrasted with attempts to impeach an expert’s opinion because it differs from something in a learned treatise. (See below section 3(f)).

d. Scientific Certainty

An expert’s opinion must be based upon a reasonable degree of scientific certainty. Although courts no longer require that the phrase “reasonable degree of certainty” be repeated with each question asked, the expert’s opinion must still be based upon that level of certainty. As stated by the Court of Appeals in Matott, v. Ward, 423 NY2d 455, 459-460 (1979):

“Dr. Millard exhibited a degree of confidence in his conclusions sufficient to satisfy accepted standards of reliability. Granted that "a reasonable degree of medical certainty" is one expression of such a standard and is therefore commonly employed by sophisticates for that purpose, it is not, however, the only way in which a level of certainty that meets the rule may be stated. For, an overview of New York case law reveals that the requirement is not to be satisfied by a single verbal straightjacket alone, but, rather, by any formulation from which it can be said that the witness' "whole opinion" reflects an acceptable level of certainty (Martin, Uncertain Rule of Certainty, An Analysis and Proposal for a Federal Evidence Rule, 20 Wayne L Rev 781, 790). To be sure, this does not mean that the door is open to guess or surmise, and admittedly, "a degree of medical certainty", taken literally and without more, could very well be so characterized.”

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Opinions expressed as “could be” or “it is possible that” are generally not admissible. See Neidert v. Austin S. Edgar, Inc., 204 AD2d 1030, 1031 (4th Dep’t 1994); Duffen v. State, 245 AD2d 653, 654 (3rd Dep’t 1997).

e. General acceptance – Frye and Daubert

Although the topic of Frye and Daubert challenges are beyond the scope of this article, this area must be considered when strategizing as to how to attack an expert. If the expert’s opinion is sufficiently novel to justify a motion under Frye or Daubert, it may provide you at best with a way to keep the expert’s opinion out, and at worst, an opportunity to learn more about the basis of the opinion.

f. Impeachment with learned treatises

In state practice impeachment with learned treatises is extremely difficult to do. This is because the witness has the ability to fend off the impeachment by merely refusing to concede that the text is authoritative. Experienced expert witnesses are trained to say that nothing is authoritative so that this device cannot be utilized. See Labate v. Plotkin, 195 AD2d 444 (2nd Dep’t 1993). The only time you may be able to use a treatise in this way is if you are impeaching a doctor who is also a defendant and you were able to get him or her to discuss the treatise at a prior deposition before the witness knew about the rule. Sometimes this can be done by asking the doctor if he has reference books in his office in his area of expertise that he finds reliable and refers to from time to time as a reference.

Federal Rule of Civil Procedure 803(18) allows a cross-examining attorney to use a learned treatise so long as any qualified expert in a case vouches for its authoritative nature. Thus, your expert can refer to the text and then you can use it against the other expert.

g. Impeachment generally and collateral matters rule

There are a number of areas of impeachment that are generally permitted, but these rarely come into play when impeaching an expert witness like a medical doctor. They include 1) reputation for truth and veracity; 2) prior bad acts, 3) conviction of a crime; 4) intoxication, drug use and mental illness. For these, except for the conviction of a crime example which is covered by statute(See CPLR 4513), you are stuck with the answer the witness gives because the collateral matter rule precludes you from disproving the witnesses’ answer on collateral matters. See People v. Alvino, 71 NY2d 233, 248 (1987).

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There are other areas of impeachment where you can attack the witness after an untrue answer is given. These include prior inconsistent statement in either a deposition transcript or published article authored by the witness.

An area of impeachment that is frequently used with expert witnesses is bias, prejudice and interest. These all go to the money a witness is making as well as a tendency to always testify for one side or the other. For instance, “Doctor, you have testified in 48 trials in your career and 47 times it was for the plaintiff, correct?” Or “Doctor you have been paid $10,000 to provide your opinion to the jury today, is that correct?”

4. Strategy in Approaching Cross-Examination

Above we discussed the tools that you have available to use for cross-examination. But what distinguishes good from great cross-examiners is knowing which tools to use in which situations and not trying to always use all of them at once. There are a wide variety of strategies and tactics you can utilize in cross-examining an expert witness. We have set forth some of the common ones in the sections below. Remember, however, that you will rarely wish to use all of them with one witness.

Once you know all of the different areas you want to address in your cross-examination (the “chapters” described above) it is also important to arrange the chapters in the best possible order for effectiveness. Sometimes order is self-evident because one issue is a prerequisite of another and must be done first. However, you should always try to follow Prof. Irving Younger’s sage wisdom “Start on a high note, end on a high note”. This strategy is important for both the jury and the witness. If you score points with your first chapter you engage the jury and get their attention for what is to follow. Conversely, if your first efforts fall flat the jury is likely to begin to tune you out entirely. In addition, regardless of how many times an expert has testified all witnesses have some nerves going into cross-examination. You want to build on this insecurity and not allow them to gain confidence by deftly fending off your very first attack. Ending on a high note just makes sense, as the last part the jury hears and is likely to best recall is among the most effective attacks you have.

a. Attacking the factual basis of the expert’s opinion

Although the expert has received training you never did and has practiced in a field in which you have never practiced, there is one thing you do know much better than that expert - the facts of your case. Interestingly, the more experts testify and become familiar with the courtroom setting the more lax they become in learning the facts of the

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case assuming that experience and superior knowledge will get them through. When you have undercut the facts presented by the expert as the basis for his opinion it allows you to begin your discussion of the expert’s testimony during closing with the line: “Everyone is entitled to his own opinion but Dr. Smith is not entitled to his own facts”. Attacking an expert on the facts underlying his opinion allows you to avoid the fight on the technical stuff that may confuse the jury and makes your job easier. If the jury finds consistently with your version of the facts then they can essentially disregard the expert’s opinion which is based upon different facts and never get to the more troublesome areas of science where jury comprehension is more difficult.

There are frequently cases where experts provide opinions based upon facts that are inconsistent with those in the record. In a recent trial involving a case where a patient’s leg came off of the operating table during the surgery which resulted in a permanent nerve injury, the defense expert testified on direct that the hospital staff did not depart from the standard of care and took all proper precautions to protect the patient. However, on cross the witness was confronted with the actual testimony from the staff in which it was clear that no one really had a recollection of what was done. In the end the expert was left with an opinion which he claimed to be based upon the fact that the hospital had policies and he assumed that all of the staff must have followed those policies - in essence, an inadmissible opinion.

b. Narrowing the areas of disagreement

In even the most contentious cases the areas of disagreement between experts may actually be quite small. By narrowing those areas for the jury you can make their choice between accepting one expert and rejecting the other easier by boiling the controversy down to its simplest elements. In a recent case the issue was how an infection had occurred to the area of the patient’s larynx. Plaintiff argued it was caused by the manner in which the NG tube was inserted by a nurse at the defendant hospital. The defense theory was that simply the fact that the tube was in place for a period of time caused an erosion of the esophagus and resulted in something referred to as “NG tube syndrome”. Although these two theories sounded very different, they were really quite similar. At the outset of cross-examination the issues were narrowed with the following questions:

You agree that there was some damage to the mucosa in the larynx or post cricoid are?

This allowed the normal bacteria in plaintiff’s upper GI tract to get outside of the esophagus and infect the post cricoid area?

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You also agree that this infection led directly to plaintiff’s tracheostomy and the need for the two surgeries to cut away portions of the vocal cords to allow plaintiff to breath better?

You also agree that as a result of the infection and the subsequent surgeries plaintiff has a smaller than normal airway that makes him short of breath with even minimal exertion and has also lost the strength and quality of his voice?

By obtaining the agreement of the expert on these points the case boiled down to what caused the injury to the esophagus. That did not mean the case was won (it actually resulted in a hung jury and subsequently settled) but it did reduce the level of complexity that the jury needed to understand down to a single basic issue.

c. Establishing medical principles with expert that help support your expert’s opinion

In most cases you need to get into the medicine or other expertise of the witness. However, this does not mean that you need to go directly to the expert’s ultimate opinion. Rather, you can try to find areas of the topic that the expert will be hard pressed to refute and which will add credence to your own expert’s opinion. To do this you must put together a series of questions that will help educate the jury and with which the doctor will have great difficulty arguing. Here is an example from the case where the leg came off the operating table:

Different mechanisms of injury cause different injury patterns in nerves, correct?

Peripheral nerves are inherently elastic?

But when traction forces exceed the nerve’s capacity to stretch, that is when injury occurs?

If the force applied is great enough, a complete loss of continuity may occur?

But more commonly, these types of injury cause only a partial loss of continuity?

The location where individual neurons are damaged along the course of the nerve is not always uniform in a stretch injury?

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If there is nerve compression, then all of the neurons are damaged at the point of compression?

By establishing medical facts like these through the defense expert you can reinforce your theory of the case and your expert’s opinion. As will be discussed below, you can also do this with treating doctors so that there is more reinforcement for your expert’s theory and more repetition of these important principles for the jurors to help understanding and retention.

d. Prior testimony, publications, website text

Except for medical malpractice cases in state court, you will know who the opposition’s expert is before the trial. In federal court you will also be provided with a listing of cases in which the expert has recently testified. There is almost always something useful you can find that was authored or testified about by the expert in the past.

In a recent state court medical malpractice case the expert disclosure provided sufficient information to fairly conclusively identify who the expert was. That expert had an extensive website advertising his expertise in the field and discussing the maladies he could treat. On that website were a number of statements that were helpful in emphasizing the seriousness of the damage sustained by the plaintiff. These statements were presented at trial to the expert, who had no choice but to agree with them as he authored each of them.

e. Medical Literature vs. Learned Treatise

Above we discussed the learned treatise exception to the hearsay rule and the limited use it has in state court practice. This is not only because of the difficulty of getting any expert to agree to a text being “authoritative” but also because medicine and science are moving at such a rapid pace in this age that most doctors review “the literature” for background rather than a specific text. This brings up a very frequent issue: How to cross-examine an expert on articles in the medical literature that he or she will not anoint as “authoritative”.

Frequently, experts will state in their reports or expert disclosures that their opinions are supported by the “medical literature”. Sometimes they will go beyond that and indicate that the basis of their opinions is that they have searched the literature and were unable to find any articles that documented or substantiated the other side’s theory. If this is the tack taken by the expert there should be no need for the “authoritative” game to be

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played because the expert has thrown open the door to a discussion of anything that can properly found within “the medical literature”.

Where an expert has actually relied on medical literature articles to form his opinion, he may be cross-examined regarding such publications at trial. He cannot “foreclose full cross-examination by the semantic trick of announcing that he [does] not find the work authoritative.” Spiegel v. Levy, 201 AD2d 378, 378-379 (1st Dept, 1994). Thus, presentation of articles which contradict the expert’s conclusion as to what the literature shows is appropriate and can be effective in discrediting that conclusion.

f. Contrasting opinions from treating physicians

In many medical cases the jury is confounded by being presented with opposing opinions from two qualified experts. In those cases the jury looks to the treating physicians who testify, whom they perceive as neutral to the controversy, to help them break the tie and decide which theory is most compelling. For this reason it is always helpful to find areas where testimony or reports from the treating physician contradict what the expert is telling the jury. The more of these that can be presented, the more the expert can be made to look like he or she is not being fair or honest in his or her assessment. For example, in the NG tube case mentioned above, the expert was confronted with the following questions on cross:

Did you have a chance to review Dr. Miller’s trial testimony before you testified?

I want to play you some of Dr. Miller’s testimony to see if you agree with it?

[Testimony video clip played]

Doctor would you agree that this thin one or two cell thick mucosa could never be accurately described as extremely durable and impervious to injury?

Isn’t that what you told this jury on direct?

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g. Contradicting testimony of another adverse witness

As mentioned above, when you have the expert on the stand you can sometimes use him or her for your own purposes as long as your questioning is within the scope of the direct and the opinions given. Sometimes you can actually get the expert to contradict the testimony of a witness in the case presented by the same side. For example, in the case we have been referring to about the NG tube injury, the nurse who inserted the tube and the nurse’s supervisor both testified prior to the expert’s appearance that they were never taught or learned that improperly placing NG tubes in the esophagus could cause esophageal perforations and serious injury. This was blatantly incorrect. However, the expert had not been prepped for this at all and after a foundation was laid by reviewing with the expert numerous medical literature reports of esophageal injuries from NG tubes and how any well trained practitioner should always be aware of this possibility when inserting a tube, the testimony of the two witnesses was shown to the expert. He had no choice but to agree that they were wrong and poorly trained if that was their position.

This can also be done when the other side has more than one expert. If they are not in agreement on any significant points, it is good to confront the expert with the discrepancies.

h. Reviewing and using information in the expert’s file

Although most experts are smart enough not to leave too much in their files that could be utilized on cross-examination, it is always worth the time to look. It could be a letter from counsel that can be used to support the argument that the expert knew what his opinion would be before referring to any of the facts. There also may be compensation information there that contradicts what the expert says he is being paid. There are also experts that bring no file with them and sometimes this can be discussed with them to plant a seed with the jury that they avoided bringing their file for a reason.

i. Compensation, bias and bad acts

This topic is left to last because it is typically the least effective for use by plaintiffs in this era. It is usually difficult to make the defense witness look like a shill unless he or she is being paid orders of magnitude over what the plaintiff’s expert received in compensation. Similarly, most expert witnesses have testified before and pointing this out rarely scores a lot of points. Because of juror’s general skepticism toward plaintiffs today these attacks frequently work much better when used on plaintiff’s experts than on defendant’s experts. Some jurors who come in with a negative feeling about plaintiffs generally only need a little help to substantiate their negative impression and give them

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cause to vote for the defense. These types of attacks will sometimes be all that is needed to convince a jury not to believe the plaintiff’s expert.

Few attorneys will put an expert on the stand that has a lot of collateral baggage. If you get into the rare situation where such an expert is before you to be cross-examined always beware of the collateral matter rule and how you will handle it if the expert denies the prior bad act.

5. Techniques in Cross-Examination

Once you have plotted your strategy there are techniques that can be used to help you execute that strategy effectively. Below are a number of techniques to keep in mind.

a. The rule of probability in human behavior

For a truly effective cross examination the examiner must be knowledgeable and aware of common principles of human behavior. In a trial you will be called upon to instantly analyze and react to a witness’s use of a certain word, phrase, or obvious body language. The examiner’s questions test what the witness is saying against widely known common experiences. You do not have to have direct knowledge to ask the witness certain questions since common human experience provides us with a probable answer.

“Q: You love your son?” or

“Q: You were upset after the accident, weren’t you?”.

The famed attorney Jerry Spence in conducting a cross-examination of an incarcerated witness who had made a deal with the prosecution to testify against the defendant demonstrated in a very sympathetic way all of the pleasures of life that the witness was being deprived of by being in jail leading to his final question:

“Q: I suppose you would do anything to get out of jail.”

Finally, in a case where the witness made a long and careful inspection of a vase in the Courtroom and then dramatically testified that that was the subject vase, the cross- examiner elicited the fact that there were thousands of these vases, and that the subject vase did not have any identifying marks upon it leaving the jury to the ultimate conclusion that the careful inspection had been nothing more than a performance.

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b. Techniques that work and those to be avoided

i. Don’t always expect to confine the witness to a “yes” or “no” answer.

ii. Avoid asking the Court to admonish the witness.

iii. Asking the Court to strike testimony as non-responsive protects your record but does very little to erase it from the jurors’ minds.

iv. Get the answer to your question. Do not be diverted.

“I am sorry, I am not making myself clear, my questions is---”

“We will deal with that subject in a moment, please answer my question---”

“Mr. Witness, are you reluctant to answer my question---”

v. If you do not get an answer, repeat the question, then reverse it.

Q: Peripheral nerves are inherently elastic?

A: Well, nerves come in many types and varieties and it is difficult to characterize them in simple terms.

Q: But my question doctor was specific to peripheral nerves and that they are inherently elastic?

A: Well in some studies ….

Q: So doctor, then it must be true that peripheral nerves are inelastic and rigid, is that your testimony?

A: Well I certainly would not agree with that, they are indeed elastic in most cases.

vi. Don’t let the witness tell his/her story or introduce new matter and new evidence. The witness will be given a good deal of latitude in answering the question, but the answer must be addressed to the question. At some point it is proper to interrupt the witness and to confront the witness:

vii. Keep your eyes on the witness during cross-examination. Be alert to what the witness says and incorporate helpful language used by the witness into your questions that follow.

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viii. Avoid rigidly using outlines during cross other than as a checklist.

It is helpful to write out questions and to make outlines into chapters and topics but do not become a slave to your outline and miss opportunities provided to you in an answer to one of your questions. Follow the leads they give you and return to your plan afterwards.

ix. Don’t allow yourself to be overwhelmed by documents and details.

Stay focused and organized. In order to do so, you may have to reduce your cross-examination to what is important and not include everything that is possible to confront the witness. Eliminating some of the less important areas will enhance your effectiveness and keep the jury much more attentive.

x. Use of hypothetical questions:

Where you are attempting to get opinions from the witness, use of hypotheticals consisting of assumed facts in evidence is a useful way to elicit the opinion.

xi. Do not focus on the meaningless and petty inconsistencies.

xii. Read the jurors, but do not avoid important areas because they appear to be tired or bored

You must always be cognizant of how what you are doing is playing to the jury. However, you also must trust your instincts and your superior knowledge of all of the facts that will be presented. Sometimes a juror after a trial will say that your cross was too long but then recite exactly the point you wanted to make late in the cross as important to them in discrediting the witness. After they have made up their minds that the witness is not to be believed then everything after that is overkill. But the problem is that you never know when that point is reached or whether it is being reached at different points by different jurors.

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