Peter B. McGlynn, The Daily Record Newswire
“A lawyer can do anything with cross-examination if he is skillful enough not to impale his own cause upon it.”
— John Henry Wigmore
Professor Wigmore’s oft-quoted observation is a cautionary note on the hazards of heedless cross-examination (see John Henry Wigmore, “Evidence in Trials at Common Law,” §1367, at 32 (James H. Chadbourn ed., Little Brown, 1974)).
Without question, the ability to conduct skillful cross-examinations is a potent arrow in the trial attorney’s quiver. However, experience in conducting the cross-examinations of lay witnesses may be inadequate when confronted with a well-prepared witness testifying on a subject he has spent years, even decades, studying. An effective cross of such an expert requires different skills and strategies.
In this column, we will examine the first three of six steps to creating a cross worthy of such a witness.
Step 1: Begin at the beginning
Learn everything you can about the opposing expert. Search the Internet for cases in which he has been cited. Did any court find him not credible? Was he ever found to be unqualified? Did he take a position in a prior case contrary to the one he is taking in yours? Is the expert legally licensed or professionally certified, thereby making it less likely he will put his career at risk by stretching the truth or by being more of an advocate than an expert?
Download the expert’s affidavits or reports in prior cases and thoroughly check his academic credentials, professional licenses and certifications. Cross-examining an expert who has embellished or lied about his credentials can be effectively devastating to opposing counsel.
Finally, download the expert’s articles, seminar materials and books. Accomplished experts are usually prolific writers, and they may have previously written about the subject matter in your case. Place all of this data in your files. Cross-reference and double-check it with the information disclosed in the expert’s written report.
Step 2: Become an expert on the expert’s report
Whether you learn about the expert’s opinions from his report or his answers to interrogatories, there is no substitute for mastering them. This will set the stage for and inform your cross-examination plan.
Are any of the expert’s opinions equivocal? Is the expert qualified to render such opinions? Do the opinions contain legal conclusions?
The answers to those and similar questions will be critical to challenges under Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2nd 469 (1993), and will help frame your objections to the expert’s direct testimony.
Finally, share the opposing expert’s report with your expert, who will likely be of assistance in helping you to formulate the more technical aspects of your cross-examination.
Step 3: To depose or not to depose
Usually, the knee-jerk answer to this question is to depose the opposing expert, if you are permitted to do so. In jurisdictions like Massachusetts, expert depositions are not permitted absent court approval (see, e.g., Mass. R. Civ. P. 26(b)(4)(A)(ii) (“Upon motion, the court may order further discovery by other means, subject to such restrictions as to scope and such provisions ... as the court may deem appropriate”)).
Deciding on whether or not to take an expert’s deposition requires the consideration of several factors. How comprehensive are the expert’s interrogatory answers or his report? Is the subject matter of the expert’s testimony complex? Is the expert a seasoned veteran who is a deft improvisator on the stand?
The savvy trial lawyer also will consider whether the deposition will elicit helpful information beyond the information contained in the expert’s report or in his interrogatory answers, and weigh that against the probability that his deposition questions will telegraph his cross-examination strategy to the opposing expert and counsel.
Thus, if the interrogatory answers (or the report) are sufficiently detailed and your court rules preclude any material variance at trial of opinions contained in the expert report, it may be prudent not to depose the opposing expert after all (after consultation with your client, of course).
Such a course of action may be especially appropriate if you have evidence that the expert has embellished his credentials or if there is a fatal flaw in his opinion, either of which he might be able to cure prior to trial. MLW
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Peter B. McGlynn is a partner and trial attorney at Bernkopf Goodman in Boston. He specializes in construction, malpractice, bankruptcy and commercial litigation cases.
