CROSS-EXAMINATION OF MEDICAL AND OTHER EXPERTS

Stephen G. Schwarz and Angelo G. Faraci

Faraci Lange, LLP
Rochester, New York
1. 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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