Three Ways to Properly Cross-Examine An Expert Witness
No matter how much face time you’ve had in a courtroom, cross-examining an expert witness can be a little intimidating. Because of their specialized pool of knowledge, you as the cross-examiner may feel like you’ve stepped into a college classroom but you’re the one telling the professor how to teach.
If the cross-examining of your expert witness is not thoroughly planned out, the subject matter can easily wander too far left or right and before you know it your expert witness has taken their testimony into an irrelevant space or topic. The truth of the matter is that it’s really not a level playing field. The good news is that once you accept that, it’s easier to prepare your expert witness for the courtroom.
Below are three tips that are by no means comprehensive, but they will help you better prepare for your expert witness’ cross-examination.
Research and prepare. Assuming you start the entire process by researching the expert’s qualifications, their standing within the community, and accolades in their own field, there are further preparations to be made. One of the most important things you should do is to search for any prior testimony they’ve provided. You should look for any former cases where they’ve provided conflicting testimony. Additionally, you should identify and read any prior publications they’ve written. In order to keep themselves marketable, expert witnesses often keep their own websites where they post a number of articles - these are fair game for cross-examination. You’d be surprised what kind of fuel you’ll find in their prior publications for the credibility fire.
Use the deposition to box them in. As a cross-examiner, you know that trial framework is set up long before the trial takes place. Take the opportunity to use the deposition to box them into their opinion. The American Bar Association has stated that it is absolutely critical to do so. This process includes asking the expert witness his or her exact opinions that he/she intends to give during the trial. The expert should also provide the basis for those opinions, which will help you if new or unintentional information is provided in the courtroom. Be sure to take the time at the end to ask the expert if there are any other opinions they intend to share during the trial. This will allow the cross-examiner the chance to exploit changes or nuanced opinions that pop up. Once the deposition is complete, study and master it so you know how to highlight any differences between the testimony from the deposition and that which is provided at the trial.
Ask yes or no questions. As you’re well aware, expert witnesses are very intelligent. They’re sought after for their expertise, which makes them much more informed on the subject than the attorney with few exceptions. Though asking yes or no questions seems like an obvious or dull method, allowing much room for expansion during a cross-examination can result in the expert proving his/her expertise and therefore credibility on the topic.