juries || expert cross-examination

Expert Cross-ExaminationAuthor(s): James W. McElhaneySource: Litigation, Vol. 30, No. 2, JURIES (Winter 2004), pp. 65-68, 72-73Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/29760415 .

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THal Notebook

Expert Cross-Examination

Miles & Maynard?an intellectual

property firm?asked Angus to help them do a mock trial in preparation for a big patent infringement case. I got invited along to play judge, make rul?

ings on objections, and take notes. "You've heard of the battle of the

experts?" said Marsha Maynard. "This case is worse. It's the expert invasion of the coast of Normandy. Each side has two lay witnesses?all the others are

experts. On top of that, Windstrom &

Crusher, who is representing the forces of patent infringement, has put its big guns and missile launchers?Patrick

Quist and Joyce Michaelman?on the

ridge overlooking Omaha Beach." It went pretty well until Jacob Miles

started his cross-examination of the

expert playing the part of Dr. Morgan Chiu, Windstrom & Crusher's micro?

processor expert. In less than ten minutes, Angus

stopped the cross?which he almost never does. "Okay," he said, "the

lawyer show cross-examination parody is over. We've got to work to do."

by James W. McElhanev Senior Editor

Jacob looked stunned. "What are

you talking about?" he said. "This is our game plan. This is what I'm going to do at trial. I know it's a bold stroke, but it's the key to throwing Patrick

Quist and Joyce Michaelman off

guard. With minor variations, this basic hardball attack is what we plan to do with every one of their 17 experts. You know, give the Towers of Dark? ness' at Windstrom & Crusher some of their own medicine."

"And you think that's the way to win over the judge and jury?" said Angus. "You were rude, sarcastic, and con?

frontational."

"Look," said Jacob. "This is a dog eat-dog world. I was just doing what Pat

Quist and Joyce Michaelman did in

every deposition." "The point of cross-examination is

to help your case or hurt theirs," said

Angus. "Not to get revenge against the

other lawyers for what they did in dis?

covery. If you treat their witnesses that

way, the jury will hate you before

you've finished your first cross-exam? ination.

"And despite the old saying that

'experts are like asparagus and you buy them by the bunch,' they're not all the same. What you do and how you do it has to be tailored to the particular expert. There is a whole array of differ? ent techniques available, and you've got to pick the ones that fit the situation.

"Take Dr. Chiu," said Angus. "You

jumped on him like a rottweiler on a T bone. Why in the world would you want to do that?"

"To destroy his credibility," said Jacob. "Because he's their witness."

"Wait a second," said Angus. "While the defense has to call Dr. Chiu for a few basic points, I don't think he hurts

you much at all. In fact, the best thing you could do with Dr. Chiu might be to make him your witness."

"Take a look at this outline," said

Angus. "It discusses some of the differ

Litigation Winter 2004 Volume 30 Number 2



ent ways to cross-examine experts." I caged a copy for myself and talked

Angus into letting me share it with other

lawyers. Here it is.

Make the Expert Your Own Witness

Do a constructive cross-examination

where you build up your case rather than trying to knock down theirs. Say the witness is an orthopedic surgeon who has just testified for the defendant

that your plaintiff's lower back problem wasn't caused by the automobile crash he was in. Instead the doctor says his

problem comes from an arthritic degen? eration of the spine.

Should you even attack the doctor's

opinion? Your own orthopedic surgeon has already testified that massive trauma was what hurt your plaintiff's back. Second, the sequence of events is on your side. For 20 years the plaintiff worked in a foundry, picking up 35

pound brass castings and heaving them onto a grinding table until the day he was rear-ended by the defendant's nine

passenger SUV. Now he can only bend forward a few degrees and is unable to do any strenuous activity. He can't even

go bowling, much less pick up 35

pound brass castings.

Why challenge the defendant's

expert on the cause of the plaintiff's

condition when you can make her your own witness for some wonderful facts that are in her report?

Q. Dr. Gomez, you didn't just read

hospital records and other doc? tors' reports?you actually exam?

ined Billy Archuleta yourself, isn't that right?

A. That's correct.

Q. Gave him a thorough physical examination?

A. Yes.

Q. Studied his X-rays? A. Of course.

Q. Tested the limits of his physical movements?

A. Yes.

Q. And evaluated his potential for an

operation that might solve his

problem? A. Yes, I was specifically asked to do

that.

Q. You determined that Billy is not a

good candidate for surgery, didn't

you? A. More or less.

Q. Excuse me doctor, but I have a

copy of your complete report con?

cerning Billy Archuleta that you wrote just three months ago. Take a look at what you say on page three if you would. Tell me if I'm read

ing it right: "Based on my objec? tive observations, I find that Mr.

Archuleta is not a good candidate for surgery. His condition is simply inoperable. Indeed, any attempt to correct the damage to his spine by surgery would probably just serve to aggravate his condition." Did I read that correctly?

A. Yes.

Q. You don't mean to change your diagnosis to "more or less," do

you? A. Oh, no.

Q. He's inoperable? A. Yes.

Q. Can this condition be faked?

A. Certainly not. That's what we mean by "objective findings."

Q. So he's not malingering? A. Oh, no.

You might like to go further, but bet? ter to stop while you're ahead rather than listen to Dr. Gomez suddenly start

talking about arthritic spinal degenera? tion again.

You might even ask to approach the bench to state for the record that you have not asked about the witness's opin? ion concerning the cause of the plain? tiff's condition, which means that ask?

ing about it on re-direct examination would be outside the scope of cross.

Watch Out for Mousetraps You may decide not to even cross

examine the witness in the first place. If the witness hasn't really hurt your case and can't be used to help it, the need for cross-examination disappears.

Besides, if the witness?particularly an expert?didn't do as good a job as

you expected on direct examination, you may get caught in a mousetrap if

you decide to cross. Here's how it works. The other

lawyer may "forget" to bring out an

important point on direct, or the expert may sound unexpectedly hesitant about some important fact or theory.

You sense a weakness that you should exploit. That weakness is a beau? tiful piece of cheese that you can't

resist, and you don't notice the little

string that's tied to the cheese and con? nected to the trap. When you pounce on that weakness,

that's just what they want you to do, because the witness is all primed to hit




you with a killer response that's been

planned for weeks. One tug on the cheese and SNAP! You're stuck with a

devastating answer that catches you totally unaware. What's worse, it has

twice the sting than it otherwise would because you brought it out yourself.

Can you avoid the trap by cross

examining the witness and carefully avoiding the cheese?

Don't count on it. Often the witness is instructed to tuck the killer response in the middle of an answer that's totally unrelated to it.

Isn't that non-responsive? Of course.

You can object to it on those grounds and theoretically even get a favorable

ruling (if the judge was listening) and an instruction that the jury should disre?

gard the non-responsive answer.

Not that it would do you any good. The jury still hears the answer and it is underscored both by your objection and the court's ruling. Besides, since the answer isn't in evidence yet, your opponent can bring it out on redirect since it didn't count the first time?

you said so yourself. But wait, you say. If you didn't touch

on the topic, then it's outside the scope of cross so your opponent can't ask about it on redirect.

But when your opponent asks the

question on redirect and you object, the court's favorable ruling is just another hollow victory. It reemphasizes for the second time what you didn't want the

jury to hear in the first place. Besides, the judge may figure that

even though you didn't directly ask about the topic on cross-examination,

something you did question the witness about opened the door to the original trap. Non-responsive is different from irrelevant to what you covered on cross.

So what do you do? If you figure that

your opponent will get hurt more by not

getting this evidence in than you will by bringing it out yourself, consider not

cross-examining the witness. And that means thinking carefully about what else you are giving up by not doing this cross-examination.

So sometimes the right response when the judge asks if you have any cross-examination is to say something like, "No, Your Honor, I see no need."

Then if your opponent suddenly remembers she forgot something important and wants to reopen direct

examination, ask to approach the bench. Ask the judge to inquire what

topics were "forgotten." If the judge thinks your opponent is trying to get the court to bail her out of her own lit? tle trial trick that didn't work, you stand a pretty good chance of hearing the judge refuse the request to reopen direct examination.

Expect Evasion and Control the Witness

All witnesses give evasive answers?

especially experts. An evasion is typi? cally the most comfortable way to avoid

giving an embarrassing answer to a per?

fectly proper question. The witness doesn't like the answer to your question so he answers a different question?one that makes him look better.

Your natural reaction to the witness's evasion is to treat it as a challenge to

your authority. Mongo, your (and everyone's) inner beast takes over the cross. "Your Honor!" you protest, "would you kindly instruct the witness to answer my question?"

And do you know what the ruling will inevitably be?

"The witness may explain her answer."

It is mistake to ask the judge to help control the witness except under highly unusual circumstances.

Do it yourself instead. The first step to witness control is to

expect evasion from every witness.

The second step is to rejoice any time

any adverse witness evades.

Why? Because the witness has just handed

you a golden opportunity to show the

judge and jury that the witness is a par? tisan who doesn't want to give any answer?no matter how honest and

simple?that might hurt "his" case.

As a General Rule

Probably the sneakiest way for a wit? ness to evade?especially an expert?is to answer your specific question with a discussion of generalities. For example, you ask a medical doctor, "Did you per? form a spinal tap on Mr. Blattner?"

And instead of saying "yes" or "no," the witness says, "As a general rule we

always perform a lumbar puncture, or

spinal tap as you call it, whenever we find the following conditions

That's an evasive answer. He didn't

say whether he did the test or not. (And next time you'll recognize it for what it is when you hear it in a deposition.) Even if all of his conditions for doing

the tap were met, you still wouldn't know if the doctor did what he says he

usually does.

But there's no need to take this dodge personally. The very fact of the evasion

probably means he didn't do the test? otherwise you would have gotten a

straight answer. So recognize that you don't have an answer yet and ask a fol?

low-up question: "So you did not do a

spinal tap on Mr. Blattner?" The answer, "No, we did not," will sur?

prise a number of the jurors, because the "as a general rule" response seems to sug?

gest that they did it as a routine matter.

I'm Sorry, But I Meant to Ask You

Let's stick with the spinal tap for con? venience. Once again you ask the doctor whether he did a spinal tap on Mr. Blatt ner. But instead of a general rule or a yes or no, you are met with a protracted harangue, attacking lawyers for bringing baseless malpractice cases that have forced doctors to do thousands of expen? sive, painful, time-consuming tests that have driven the cost of health care out of

sight and interfered with the professional judgment of medical practitioners.

Instead of anger or sarcasm, just smile and say, "I'm sorry, Doctor, but I meant

to ask you whether you did one of those

spinal taps on Mr. Blattner. Could you answer that question, please?"

If you had objected that the answer was non-responsive, the jury would not understand why you were complaining. After all, you had asked about spinal taps, and you got "what for" about

spinal taps. But when you nicely restate the ques?

tion, the jury suddenly figures out for themselves that the witness didn't answer your question and they realize the doctor was being evasive.

That Means No? When the witness has the temerity to

dodge your question a second time, one of the best ways to handle it is to say, "Excuse me Doctor, does that mean

'no,' you didn't do the test?"

The Jury is Going to Think You Don't Want to Answer My Ques? tion?Is That Okay With You?

When the witness dodges your ques? tion a third time?and it happens?this is one of the best responses.

I'm Sorry, But the Rules of Evidence Don't Let Me Answer Your Question




There is another dodge you need to learn how to handle. That's when, instead of answering your question, the witness fires his own question back at you.

It's a terrible mistake to surrender control and answer the question. The witness's questions will continue and

your entire examination will fall apart. It's almost as bad to do the traditional

response: "You don't seem to under?

stand, I'm the lawyer and you're the witness. I ask the questions and you give the answers." It emphasizes that

you are a lawyer and that lets you hide behind the lectern. It sounds snotty and it makes it seem like you don't have any

idea how to answer the question. Instead, say, "I'm sorry, but the rules

of evidence don't let me answer your question. If they did I'd be happy to

explain exactly what you should have done." (Which you will do in final argu? ment when this argumentative rascal has no opportunity to talk back.)

Don't Ask the Witness for Information

"Why not," you say. You're cross

examining a medical doctor, and in the middle of a document you're about to

show the witness are the words, "myocardial infarction."

You know it's a term the jury won't understand. Why not just say to the wit? ness, "Doctor Wessex, would you

please tell the ladies and gentlemen of the jury what is meant by the term, "myocardial infarction?"

"Certainly," says the doctor. "A

'myocardial infarction' is what lay peo? ple usually mean when they talk about a 'heart attack.' But 'heart attack' can

mean all kinds of different things. A

'myocardial infarction' means part of the heart has actually died?typically because of blocked arteries that supply

the heart itself with blood." There it was?exactly what you

wanted. So why not ask the question? Because the real message behind

your question says, "You want good medical information? Ask Doc Wessex. I do."

Instead, always ask leading ques? tions, even when the answer is not in

dispute.

Q. Doctor, you're familiar with the term, "myocardial infarction"?

(That, by the way, is a neat ques? tion because it suggests that

maybe it's something he hasn't heard of. So expect a testy tone in the witness's response.)

A. Certainly.

Q. It means there's been a death of heart tissue, doesn't it?

A. Yes.

Q. Typically, but not always caused

by a lack of blood supply to the heart?

A. Yes.

Just make sure you clear your ques? tions with your own expert or a profes? sional dictionary before you say some?

thing that's off the track. And there's another reason why you

should always ask leading questions on cross-examination. Because on cross

you're the real witness. It's your turn to

testify to the rest of the story and the witness on the stand has to agree that what you said is true.

Show That There Are Other Points of View

You lay the groundwork for this series of questions when you take the

expert's deposition. Everybody?even experts?have heroes. Every real expert has someone she respects, whose books and articles she reads. (And if you were

lucky that's who you hired as your expert.) But don't stop with heroes. Get a list of who is doing leading research in the area?and if the witness doesn't know, or claims there isn't anyone, you've got a ready-made nugget for cross-examination at trial.

Then get your experts to educate you even further, so you know the names of the different approaches that competing experts take in this subject as well as a list of the leaders in the field.

But the point of all this is not to make a direct attack during the cross examination of the witness. When you attack a competent witness's knowl?

edge or judgment head on, you are

likely to get murdered?if not on re?

direct, then on the cross-examination of your own experts.

Instead, the point is force the witness to admit that there are entirely different

approaches to the problem that might well lead to different conclusions.

Attack the Facts and

Change the Question Typically expert witnesses get some

(Please turn to page 72)




2003 U.S. App. LEXIS 19638. Stewart is an ugly case. We will never

know what possessed Clarence Stewart to make repeated visits to the jewelry counter in a Target store in Upper Marl? boro, Maryland, one May day. Because he did not live to tell the tale. Com?

plaints to the local police by sales per? sonnel about Stewart's visits brought officer Stephen Vitko to the scene.

When he was first called, Vitko found Stewart at a nearby store, walked him back to Target to discuss the matter with the complaining employees, and

warned Stewart to stay away thereafter.

Stewart agreed but apparently thought better of it almost as soon as Vitko left.

Within minutes, Stewart returned and, shortly thereafter, a re-summoned Vitko

did, too, with reinforcements. Then all hell broke loose.

To hear Vitko and some fellow officers tell the story, after accosting Stewart, they asked him to accompany them to the store security office. He complied. In that office, however, he became violent, and Vitko and his comrades were required to use substantial force to subdue him. Once

having handcuffed Stewart, they began walking him out of the store. Stewart then suffered a cardiac arrest and died before

reaching the hospital. Three eyewitnesses saw it differently.

Their testimony was somewhat unclear, but its gist was that Stewart was man? handled from the start. They contended not only that Vitko roughed up Stewart on Vitko's first visit but also that the

subsequent violent confrontation took

place not in the security office but near the front of the store. The police offi? cers, they said, used violence with Stewart without any provocation what? soever. They simply began to "pum?

mel" Stewart who, having slumped to the ground, lay there defenseless, beg? ging the officers to stop. On the basis of this account, Stewart's wife filed a law? suit against the police.

Vitko filed a summary judgment motion. A classic fact dispute, you might think. Eyewitness against eyewit? ness. The motion might have seemed a

no-hoper. Surely this was a matter for the jury to decide. But it never got there.

The reason was that Target main?

tained outdoor surveillance cameras

trained on the parking lot and the front of its store. These cameras seemed to

gainsay the account that the Stewart

eyewitnesses had given of the early events in the confrontation. They

caught Vitko and Stewart on tape in the

parking lot when Vitko was first called to the scene. There was no hint of the untoward behavior Mrs. Stewart's wit?

nesses said they had observed. But it was not this fact that seemed to

sway the court. And rightly so. This tape footage might have undermined the Stewart witnesses' general credibility, but it did nothing to disprove their account of the pummeling in the front of the store. To get there you would seem at least to need footage of the later scene inside. Otherwise you would still have the word of Mrs. Stewart's eyewit? nesses, however damaged their credi?

bility might be, against that of the police officers. Still, a jury's issue to decide.

The tapes did not show the inside of the store, however. End of motion? Not

according to the court. The cameras showed people walking in and out of the store at the time the confrontation was supposedly taking place. None of these people showed any sign of seeing anything unusual, although the Stewart witnesses claimed that the pummeling was taking place close by. The court concluded that, in light of this evidence and some other minor evidence corrob?

orating Vitko's account, no reasonable

fact-finder could believe the testimony of the Stewart witnesses.

Really? The plaintiff had three eye? witnesses. Weren't they entitled to say what they saw? Was it really true that there could be no explanation for the conflict between what the eyewitnesses swore to and what inferences might be drawn from the videotape? Is technol?

ogy really so foolproof? More impor? tant, should the court have been so sure it knew the precise meaning of the pic? ture the tape footage painted of the sur?

rounding circumstances?

Perhaps anticipating this objection, the court said there was no evidence that the tape had been corrupted or, as Mrs. Stewart said, of "lying." But was it

really Mrs. Stewart's obligation to

prove this on summary judgment? There was no evidence that her wit? nesses had been corrupted either. It was their word against Vitko's, whatever additional force his testimony gained from the tape. And it was the jury's job to assess the credibility of the witnesses on all the facts. Try as it did, the court could not make this credibility issue go away. So it just resolved it as it saw fit. Is it time, then, to rewrite the refrain on

summary judgments? iE1

Trial

Notebook

( Continued from page 68)

or all of the facts that are specific to the case from the lawyers?not from their own research. And if you disagree with some of those facts, it's an excellent

opportunity to blame the other lawyer.

Q. Dr. Fieldstone, you use a com?

puter in your work as an econo?

mist?

A. Of course. It would be impossible without it.

Q. So you've probably heard the say? ing computer experts have?

"Garbage In Is Garbage Out"?

A. Yes.

Q. It means that the answer the com?

puter gives you is no better than what you put in it?

A. Exactly.

Q. Now, you didn't do any research on Macro-Soft's earnings?

A. No.

Q. The information you have came from Macro-Soft and its lawyers. True?

A. True.

Q. And if that information turns out to be wrong, then so does your conclusion. True?

And if you get any kind of shuffling or dodging in response to that?which

you may?your next question is,

Q. Dr. Fieldstone, you're not telling us you can get the right answer from the wrong information are

you? A. No.

Then you're ready to give the expert the information that your witnesses say is correct and have him redo his calcu? lations:

Q. So Doctor, instead of what Macro-Soft and Lawyer Williams told you, let's plug in the informa? tion that was provided by the Securities and Exchange Com? mission's Special Task Force and see what results you get.




Expose Bias Bias is everywhere ?in exorbitant

fees, an interest in the outcome, mar?

riage, kinship ?anything that might influence the witness's testimony.

Two notes about using bias:

First, only use it when you've really got something. Fuming and railing over minor quibbles reduces your entire cross-examination to its lowest com?

mon denominator?your empty attack on bias.

Second, one of the most effective

ways of using bias is to link it to some

particularly important point you really want to attack. But the way to link bias is not to say there is a connection between it and what you're attacking.

Just put them next to each other and let the judge and jury connect them for

you.

Say that Doctor Fieldstone comes up with a strangely inflated evaluation of Macro-Soft's assets. After going through his calculations to see how he reached his conclusion, you're ready to

compare his answers to what other economists would say.

Q. In other words, Dr. Fieldstone, following the ordinary approach,

Macro-Soft's assets would be

approximately 2 billion, 300 mil? lion dollars?

A. Yes, that's what the average econ?

omist would say.

Q. But under the Fieldstone

approach, you're able to come up with 4 billion, 500 million dol? lars?

A. A far more realistic evaluation, under the circumstances.

You pause, scratching your head, ignor? ing his last comment. Then you turn

your head and look at Dr. Fieldstone.

Q. Pardon me, Doctor, are you some

kind of kin to Marvin Schuman, the CEO of Macro-Soft?

A. He's my brother-in-law. What has

that got to do with it?

Q. That's going to be up to the jury, Dr. Fieldstone. No further ques? tions, Your Honor. Q

Copyright ? 2004 by James W. McElhaney. All rights reserved. Mr. McElhaney is the Baker & Hostetler Distinguished Scholar in Trial Practice at CWRU School of Law in Cleveland, and the Fred Parks Distinguished Lecturer in Trial Advocacy at South Texas College of Law in Houston.

literary Trials

(Continued from page 76)

lowed by a rambling account of who

pushed whom, in what part of the ship, with contradictory evidence from But? ton, Menhasset and Mutton, and remarks on character; and it seemed that the main issue might be lost in a discus? sion of who lent someone two dollars off of Banda, and was never repaid, in

grog, tobacco, or any other form.

"What about this ape's head?" said Jack.

"Here, sir," said the master-at-arms,

producing a hairy thing from his bosom. "You say it is yours, Evans; and you

say it is yours, Rogers? Your own prop? erty?"

"She's my Andrew Masher, your honour," said Evans.

"He's my poor old Ajax, sir, been in

my ditty-bag ever since he took sick off the Cape."

"How can you identify it, Evans?' "Anam, sir?"

"How do you know it is your Andrew Masher?"

"By her loving expressions, sir, your honour. By her expressions. Griffi

Jones, stuffed animals, Dover, is giving me a guinea for her tomorning, yis, yis."

"What have you to say, Rogers?" "It's all lies, sir!" cried Rogers. "He's

my Ajax. Which I fed him from Kam

pong?shared my grog, ate biscuit like a Christian."

"Any distinguishing marks?"

"Why, the cut of his jib, sir: I know him anywheres, though shriveled."

Jack studied the ape's face, which was set in an expression of deep, melan?

choly contempt. Who was telling the truth? Both thought they were, no doubt. There had been two ape's heads in the ship, and now there was only one.

Though how anyone could pretend to

recognize the features of this wizened red coconut heavy in his hand he could not tell. "Andrew Masher was a female, I take it, and Ajax a male?" he said.

"That's right, your honour."

"Beg Dr. Maturin, is it possible to tell the sex of an ape by its teeth, or that kind ofthing?"

"It depends on the ape," said

Stephen, looking eagerly at the object in Jack's hands. "This, for example," he

said, taking it and turning it about, "is an excellent specimen of the male simia

satyrus, Buffon's wild man of the woods: see the lateral expansion of the cheeks, mentioned by Hunter, and the remains of that particular throat-sac, so characteristic of the male."

"Well, there you are," said Jack. "Ajax it is. Thank you very much, Doctor. The

charge of theft is dismissed. But you must not knock people about, Rogers. Has

anyone something to say in his favour?" The second lieutenant stepped for?

ward, said that Rogers was in his divi? sion?attentive to his duty, generally

sober, a good character, but apt to fly into a passion. Jack told Rogers that he

must not fly into a passion; that flying into a passion was a very bad thing?it

would certainly lead him to the gallows, if indulged in. He was to command his

temper, and do without grog for the next week. The head was confiscated tem?

porarily, for further examination? indeed, it had already vanished into the cabin, leaving Rogers looking some? what blank. "I dare say you will get it back in time," said Jack, with more con? viction than he felt. The other default? ers, all guilty of uncomplicated drunk? enness, were all dealt with in the same

way; the grating was unrigged; the cat, still in its bag, returned to its resting place; and shortly after the hands were

piped to dinner. Jack invited the first

lieutenant, the officer and midshipman of the watch, and the chaplain to dine with him, and resumed his pacing. 10




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