The Trial Practice Tips Blog

A Tip for Controlling Opposing Experts During Cross-Examination at Trial

When cross-examining the opposing expert at trial, stick to that old adage--leading questions only. Asking questions that call for either a "yes" or "no" is the best way to keep the opposing expert from giving that self-serving speech that he's just waiting present to the jury . . . and which he will present just as soon as you ask, frustrated at your own inability to elicit the testimony you want, "Well, what is your opinion based on?"

If you did a good job of deposing the expert before trial, your cross-examination won't be as difficult as it might seem. In fact, it should be constructed entirely of questions you have already asked. Consider this basic outline, which will work in many situations--

• Weaknesses in the witness’s experience and qualifications that call into question his authority to render the opinions he gave on direct. 
• Deficiencies in the expert’s preparation to render an opinion. 
• Assumptions the expert is making to support his opinion that will be disproved in your case.
• Admissions the expert made in his deposition that support--
  
  • your facts and theories, and
  • the qualifications, competence, and credibility of your expert and his methods.

Source note: The first paragraph of this post was written after browsing a chapter of On Trial: Lessons from a Lifetime in the Courtroom, by Henry G. Miller.

Publication note: Originally published 9/21/05.

On Cross, Don't Use Adjectives Needlessly

When you are cross-examining a witness, you should be careful not to give the witness an opportunity to explain. This is exactly what you'll do, however, if you use adjectives needlessly--

Q. "You couldn't see the collision clearly, Mr. Witness, could you?"

A. "Yes, I could. I had a very clear view of the collision. I was standing right there when it happened--there no way I could have had a better view."

The witness might also reply, "It depends on what you mean by 'clearly.'" In either case, the witness is no longer under your control, and the jury is watching him, not you.

Rather than using adjectives, think about the facts that together can stand in place of the adjective, then turn each of these facts into a separate question. It will make your point as clear as possible, will give the jury a visual image, and will keep the witness under your control--

Cross-Examination and the Evasive Witness

Here's a useful post from the At Counsel Table blog, written by Alex Craigie: "Three Ways To Control An Evasive Witness On Cross-Examination."

Craigie offers three suggestions for controlling an evasive witness, drawing from the work of James McElhaney. Recommended.

Thoughts on Legalese and Cross-Examination . . .

. . . From a blog with some visual style, What About Paris: "Speaking of Jim McElhaney: Cross-Examination."

Cross-Examination: Tips from James R. Elkins

Cross-examination tips: A page of links from Professor James R. Elkins at the West Virginia University College of Law, including articles, videos, and book recommendations.

Examining Witnesses: Tips from Pace Law Library

Recommended: A page from the Pace Law Library website titled "Examination and Cross-Examination: Getting the Facts," which includes a number of articles, orqanizations, and other resources that you can bookmark and review later.

Cross-Examining with a Facebook Page

Here's a self-explanatory quote from Boudwin v. General Ins. Co. of America, 2011 WL 4433578 (La. App. Ct. Sept. 14, 2011)--

On cross examination, however, Lee acknowledged several entries from his Facebook page where he reported frequently “working out” and also playing sports such as basketball, tennis, “ultimate Frisbee,” and softball, sometimes engaging in multiple sessions of sporting activities in a single day. He further acknowledged that he wrote on his Facebook page that he had participated in a softball tournament in the month before trial, which happened to be two days before his final visit with. Dr. Cenac. When asked if he had informed Dr. Cenac of any of injuries he had sustained while playing sports, he stated that he told Dr. Cenac that he stayed “active,” but that he was “not inclined” to tell Dr. Cenac that he was playing on softball teams.

Read commentary about the case, and further examples of social media tripping up litigants, at Goldman's Observations.

Related post at Trial Practice Tips: "Facebook and Discovery, an Update."

Cross-Examination: Seven Essential Impeachment Techniques

Here are a few tips from the new Cross-Examination Handbook, which I posted about in March: Seven Essential Impeachment Cross Techniques--

• Assess and adjust. What type of witness are you dealing with? Basically honest? Prone to exaggeration? A liar? Know your case and the witness well enough to be able to adjust your cross-examination approach on the fly.
• Lock the witness into testimony. If you don't pin down witnesses to their inaccurate versions of the facts, they're apt to wriggle free later.
• Establish a motive. If you are trying to make the witness out to be a liar, you'll be more successful if you establish the witness has a motive for lying.
• Paint a picture for the jury. Establish your points fact by fact, allowing the jurors to reach the one obvious conclusion on their own.
• Close the exits. After locking witnesses into their own incorrect version of the facts, you also have to bar the escape routes. Try to imagine how you would do it if you were the witness.
• Surprise. Don't allow witnesses to know the precise objective of your impeachment until their testimony is locked down and the escape routes are closed.
• Visuals and other tangible things. If you can add visual aids to your impeachment, do so, as it makes you more persuasive and aids the jury in remembering.

Source: Cross Examination Handbook, by Ronald H. Clark, George R. Dekle, Sr., and William S. Bailey. The seven points are from the text; the shortened summaries of each point are my own.

Cross-Examination: Some Representative Posts

Over the years, I've done almost fifty posts on cross-examination. The easiest way to find them is in the weblog's cross-examination category.

Some representative posts:

• "Scott Turow's Five Essentials of Cross-Examination"
• "Cross-Examining by Body Language and Tone of Voice"
• "Cross-Examination at Trial: Just Say No."
• "Craft a Cross-Examination Using the Witness's Own Documents." 
• "Where and How to Stand During Direct and Cross-Examination"
• "Cross-Examining the Liar at Trial: Two Absolute Prerequisites"
• "Preparing for Expert Depositions by Looking Ahead to the Cross-Examination at Trial."

To make this weblog easier to navigate, almost every post has been assigned to one or more categories. These categories are listed in a column on the weblog's left side.

In addition to cross-examination, you can find categories for legal writing, depositions, voir dire, opening statement, evidence, experts, closing argument, and many other topics.

Deposition Tip: Help with Sniffing Out the Liars

From Forbes: "How To Sniff Out A Liar," by Melanie Lindner--

While there is no surefire on-the-spot way to sniff out dissemblers, there are some helpful tactics for uncovering untruths.

Liars often give short or one-word responses to questions, while truth tellers are more likely to flesh out their answers. According to a 2003 study by DePaulo, a liar provides fewer details and uses fewer words than an honest person, and talks for a smaller percentage of the conversation.

Skilled liars don't break a sweat, but the rest of us get a little fidgety. Four possible giveaways: shifty eyes, higher vocal pitch, perspiration and heavier breathing. Of course, not everyone who doesn't meet your gaze is a liar.

If you think this advice might be helpful to your deposition-and-trial practice, check out the full article. While not written specifically for lawyers, much of it applies to what trial lawyers do.

Related posts:

1. "Practice Tip: Assume Your Deposition Witness Is Lying."

2. "Cross-Examining the Liar at Trial: Two Absolute Prerequisites."