R. James Kravitz | Fox Rothschild LLP | December 22, 2014
I recently completed a trial in which my adversary’s cross-examination of my expert was like a deposition. The cross-examination took an entire day. The end result was that my adversary did very little to damage the credibility of my expert’s opinion, while my expert was able to repeatedly reaffirm her direct testimony.
This was a critical mistake.
You should assume that an expert witness is more knowledgeable on the topic that he or she is testifying about than you are. Expert witnesses, by definition, will likely have far more experience on the subject of their testimony than you, and are far more effective than the normal witness that may never have testified or has only testified once or twice in the past.
When cross-examining an expert, you need to very carefully limit your cross-examination. I typically identify half-a-dozen key points that are designed to shed light on defects in the expert’s reasoning or testimony. That number will be higher or lower depending on the quality of the expert’s opinion and testimony. I am very careful not to go beyond these points as it will enable the expert to reaffirm her direct testimony.
As is the case with all adverse or hostile witnesses, your questions should be in the form of leading questions and you should know the anticipated answer to each of the questions. If the expert deviates from what you expect, you should be prepared to pin him down with his deposition testimony, the expert’s report, a treatise or some other authority that is directly on point.
What you should not do is use the cross-examination of an expert as a fact finding inquiry in front of a judge or jury. It is rare that an expert will be so bad that you can spend all day with the expert.
You should assume that the expert will be an effective witness if given the opportunity. You should not give the expert an opportunity to bolster or reaffirm her direct testimony. Your examination should be narrow and focused.
via How Not To Cross-Examine An Expert – Litigation, Mediation & Arbitration – United States.