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Trial Tactics
Expert evidence
can make or break a lawsuit. But expert evidence is often
boring, complicated, obscure, and abstract. Its presentation
is utterly predictable; it lacks drama. In a way, that is
not surprising: Expert evidence is, by definition, evidence
on subjects that most of us know little about; it should be
hard to grasp.
This, then,
is the challenge of expert evidence: How do you convey specialized,
difficult information in court? Remember, a courtroom is a
bad place to present complex information. Jurors rely mostly
on what they hear; they get such information in the order,
and at the speed, determined by the advocates and rules of
evidence-but not by common sense. Jurors have no time to study
the evidence or to ask questions, and testimony goes on far
longer than most of us can pay close attention.
Even the
most skilled advocate faces these problems. But many lawyers
make the situation worse by using graphics that half the jury
cannot see, asking long garbled questions, and adopting the
argot of the expert's profession instead of simple English.
Attorneys make some of these mistakes because they believe
their task is to teach jurors the substance of the expert's
testimony. when lawyers set out to try to convince jurors
that their expert's conclusions are right as a matter of science,
engineering, accounting, economics, or medicine-that their
expert is substantively more correct than the other side's-they
run headlong into the fact, as unassailable as a brick wall,
that actually teaching the substance of expert evidence is
a daunting task. Remember also that jurors are not expected
to know what most experts know. If they did, the experts would
be unnecessary - Judge Learned Hand made this point a century
ago: But how can the jury judge between two statements each
founded upon an experience confessedly foreign in kind to
their own? It is precisely because they are incompetent for
such a task that the expert is necessary at all.
Hand, Historical
and Practical Considerations Regarding Expert Testimony, 15
Harv. L. Rev. 40, 53 (1901).
The point
is not that jurors are too unsophisticated or uneducated to
decide hard questions. It is simply that they are not experts;
they are not specialists in any field relevant to the case
in which they serve. Most of us have no idea how to perform,
say, anterior cruciate ligament repair surgery properly; few
are likely to be able to pick it up in the courtroom. Even
an expert would probably laugh if asked to give a professional
judgment based solely on a courtroom presentation.
When we ask jurors to decide cases that involve expert evidence,
we therefore should recognize that they will not conduct anything
like scientific peer review. Rather than deciding whose science
is right, they pick which expert they believe-and that is
a different decision.
How Does
the Jury Decide?
The idea is that the basic subject matter of expert testimony
is not the real focus of a jury's analysis. This is no indictment
of the jury system, which works well. The outcome of a case
may depend more on the skill of the lawyers or the characteristics
of the parties than would be desirable if the jury's sole
job was answering questions. The broader function of juries,
however, is resolving disputes in a way that reinforces our
confidence in the fairness of the judicial process. Panels
of more specialized decision-makers probably could not do
that unless the parties agreed to the process in advance.
Even if they could, building a "smart jury" (to borrow a Desert
Storm metaphor) really does not get at the heart of the problem
identified by Judge Hand-namely, that two people (both sides'
experts), who usually know more about the subject than even
the brainiest jurors, disagree. That is the problem that challenges
advocates. In deciding how to present experts, lawyers should
keep two points in mind: First, the jury decides who wins.
Second, jurors pick winners mostly by evaluating the credibility
of the lawyers, parties, and witnesses.
Let me elaborate:
Most special verdict instructions tell or your client's employees.
Insiders may be more credible as jurors not to answer the
verdict questions according to who they think should win,
but I suspect that, inside the jury room (and inside each
juror's mind), this command seems so wrong-headed that it
is ignored. Juries surely believe that their function is to
decide who wins.
Another point: Jurors are sometimes said
to find or decide facts, but they actually decide probabilities.
Cases are tried because there is more than one believable
version of events. The jury's job is to decide who wins; its
method is to evaluate which version of events is more probable.
But how do jurors reconcile contradictory evidence from experts-and
can they?
Two apparently evenly matched reservoir engineers
calculate oil reserves drastically differently which one is
right? It may be possible to identify the differences between
each expert's assumptions, but even then the question remains:
whose assumptions are right? Thinking that the question is
"which expert is right?" misses the point. In many cases a
dispassionate expert observer would conclude that neither
is right-or perhaps that both are, depending on the assumptions.
Even though the decisions
juries make about experts mostly concern credibility-and not
accuracy or correctness, Jurors sometimes conclude that
neither expert is right, they are encouraged to reach a definite
conclusion about the case. They take the job seriously; they
want to reach a result. As a consequence, the decisions juries
make about experts are predominantly decisions about credibility-and
not accuracy or correctness. Of course, accuracy can be relevant
to credibility, because it is easier to undermine the credibility
of a bad engineer or economist than a good one. But, in most
cases, jurors' analyses focus more on which side they trust
most than on the accuracy of conclusions about technical issues.
Credibility is thus the key.
Your efforts in presenting expert
evidence should be aimed at making your expert more credible
than your opponent's expert. A devastating cross-examination
of the other side's expert can do that, but you only get one
shot. On direct, however, there are many ways to enhance your
own expert's credibility; these you can control much more
than you can the outcome of cross-examination. First, critically
examine the conventional wisdom that experts should be independent.
Should you choose an independent expert? Answer that question
by answering this one: Do you believe jurors think experts
are independent? Or this one: Would you sponsor an expert
whose conclusions could be adverse to your client's case?
Expert testimony
is predictable because everyone knows an expert's function
is to provide testimony useful to the side that retained him.
That partnership will not necessarily make jurors disbelieve
expert testimony. It is just that common sense tells them
that your expert is, in fact, your expert.
This means that an outside expert may not even be necessary
An outsider may not be more credible than your client or your
client's employees. Insiders may be more credible as experts
precisely because of their greater knowledge of the facts.
An inside expert will almost always be a more interesting
from the jury's perspective. People actually involved in the
business or the dispute provide an immediacy that an outsider
cannot. In addition, an inside expert is clearly identified
with your client. If your client's case is otherwise strong,
that identification can bolster the inside expert's evidence.
Inside experts
can be particularly effective when their opinions are fled
to the work they do every day. Testimony from these people
generally is more concrete and engaging than the opinions
of an outsider. Inside experts can be particularly effective
in calculating damages suffered by their own enterprise.
The first rule in presenting an expert credibly is to keep
it short. Protracted testimony is rarely effective. Jurors
get bored. They have difficulty separating important information
from less important. You need to get your expert through direct
examination in about two hours, at the outside-faster if you
can. Cross-examination will usually last longer, but that
is your opponent's problem, not yours. Short, efficient, direct
testimony for an expert should have three parts:
- the expert's
qualifications,
- the expert's conclusions, and
- the
basis for the expert's conclusions.
The conclusions are the
crucial part. Qualifications and the basis for opinions are
important only to the extent they make the expert's conclusions
credible. The expert's direct examination should begin with
an introduction of the expert and a brief explanation of why
he is testifying. Jurors who know what kind of information
is coming will be able process it more effectively. Testimony
about the expert's general qualifications should come next.
If the expert has an impressive resume, it will be a helpful
exhibit. The expert's testimonial description of his qualifications
should concentrate on those most pertinent to the case. Such
background information should never go unmentioned. Do not
fall into the stipulation trap; even when the expert's resume
is an exhibit or your opponent offers to stipulate to the
expert's qualifications, do more. The jury needs to hear the
expert describe some of the things she has done and achieved.
Testimony about qualifications should underscore the relationship
of credentials to the work done for the case. when some aspect
of the expert's background has particular relevance, it should
be highlighted.
Talk About Past Testimony
Testimony about qualifications can also be used to defuse
a common attack on expert credibility-namely, that the expert
is a "professional witness." If the jury first hears about
an expert's past testimony as part of the explanation of his
qualifications, your opponent's ability to surprise the jury
with the issue will evaporate. In addition, you will have
planted the idea that the prior work, including testimony
is a positive factor (experience) and not a negative one (bias).
All of this should be done in about ten minutes. You cannot
keep people's attention longer than that without introducing
new matter.
After qualifications
come conclusions. There are two parts to this: an explanation
of the work done to arrive at the conclusion, and the conclusion
itself. But do not discuss the underlying work in any detail
at this initial stage. Instead, have the expert recite in
condensed fashion the broad outlines of his work and then
his specific conclusions. For example:
Q. You told
us a few minutes ago that you are here to provide expert testimony
concerning the profits -ABC Corporation lost because of the
problems with the defendant's timing mechanism. Please tell
us the kind of work you did in order to arrive at the answer.
A. From 1986 to 1988, ABC sold widgets with a timing mechanism
made by XYZ. In June 1988, they switched to the timing mechanism
made by the defendant. Almost immediately their customers
began reporting widget failures. In 1990, ABC switched back
to the timing mechanism they had used before. The question
I needed to answer was how much that 18 month period cost
ABC. I first determined how many more sales ABC would have
made if they had not run into the problem with the defendant's
timing mechanism. Having done that, I determined how much
profit ABC would have made on those lost sales.
Q. what conclusion did you reach?
A. I determined that ABC's lost profits were $4,253,750.
Or:
Q. You told us that you are here to provide expert testimony
concerning the safety of the scaffolding built by Hi-Rise
at the Bancorp building. Please tell us what you did in order
to reach your conclusion?
A. I studied drawings Hi-Rise provided of the design of the
scaffolding and the documents showing the materials actually
used in it. I also inspected the remains of the scaffolding
that were still available and I read the depositions that
described how the scaffolding was built and what different
witnesses saw when it collapsed.
Q. What
conclusion did you reach?
A. The Hi-Rise scaffolding was an accident waiting to happen.
The object is to get the conclusions out promptly, while people
are paying attention, with just enough information about the
underlying work to make the basis for those conclusions comprehensible.
Thus, in
less than 30 minutes, you have presented the essentials of
your expert: The jury knows who she is, why she is there,
what makes her so smart, and what her perceptive analysis
has revealed. Already you have made the important points you
want the jury to remember.
Having done this much, there are only two other considerations
to weigh in deciding how much more to do. One is the law.
You must know the legal standards for sufficiency of the evidence;
these differ from jurisdiction to jurisdiction and from subject
to subject. In Texas, for example, a bare assertion of a damage
conclusion without proof of the method used and the data relied
upon is insufficient to support a lost profits award.
Holt Atherton
Indus., Inc. V. Heine, 835 S.W.2d 80 (Tex. 1992).
How
Much Detail?
The other consideration is how much more your expert
needs to say in order to be credible. This decision must be
made with your fact-finder in mind, of course. Great detail
may be needed in a bench trial. One jury may need more detail
than another. The decision is obviously subjective, and you
should make it based on which jurors you think will be the
leaders during deliberation. You must judge the extent to
which they seem able to comprehend the expert's work, based
on their background and the attention they have devoted to
the case.
Given the
nature of courtroom evidence, a little detail goes a long
way. Most information in court is communicated orally, which
makes it hard to comprehend and retain. Graphic and visual
presentations help, but the courtroom environment limits their
benefits. Charts, overhead projections, blow-ups of documents,
and television monitors may be hard for some jurors to see.
If the jurors are given individual copies of the material,
they will have difficulty finding their place. Beyond that,
anything the jury reads or looks at will be accompanied by
other activity in the courtroom, most often your own expert's
testimony.
The problems posed by the courtroom should govern how you
present the details-the technical basis for your expert's
conclusions. Remember that your ultimate goal is to persuade
the jury to believe the expert. If they believe the expert,
they will accept her conclusions. To do this, you should show
the jurors enough to persuade them that the expert actually
has done meaningful work and that it seems to make sense.
When the expert has prepared a report, it can be an effective
way to illustrate the expert's work. In the lost profits example,
for instance, the expert's report will probably include a
spreadsheet showing, by month, revenues and costs associated
with the lost sales. Introduce this report and take the expert
through a typical month. With the report in the jury's view,
the expert can describe how he arrived at each component of
the calculation. This is when the expert can describe how
he quantified ABC's lost sales and how he estimated the costs
associated with those hypothetical sales.
One illustrative
month should suffice. As the expert describes each aspect
of the spreadsheet calculation for that month, he can tell
the jury how the information for that particular entry was
derived, pointing the jury to other schedules in the report,
or to general kinds of source documents, as appropriate. You
are engaged here in show-and-tell, not a doctoral dissertation.
what you are proving is not that the calculation is correct,
but that the expert has done the work and believes it is correct.
The emphasis should be on process-the use of a sensible technique
by a knowledgeable expert.
Even when
an expert report is not required, consider having the expert
prepare one. Such a document has an inherent persuasiveness,
quite apart from its content. For jurors, someone who has
put his conclusions on paper will seem more committed to them
and more professional. Moreover, a report lets you present
your points in both oral and written form; it is a convenient
tool for short-cutting the expert's examination. The expert
can testify generally about some aspect of the work, and then
refer the jury to the report for the more detailed explanation.
When you have finished with the expert's explanation of the
underlying work, go back to the conclusions. Repeat them.
Then pass the witness.
You will of course have planned your direct with cross-examination
in mind. Remember two things. First, the real problem with
cross is not necessarily the genuinely weak points in your
expert's model; it is instead those aspects of the expert's
work that your opponent can make look weak. These may be quite
different. Some real weaknesses-dubious assumptions about
highly technical matters, for example-sometimes cannot be
conveyed clearly to a jury Even if they appear laughable to
other experts, it may be difficult to explain that to jurors.
Other aspects of what the expert says may not be weak at all,
but can be effectively undercut by your opponent. Maybe the
expert's conclusion or technique is counter-intuitive. Perhaps
the expert's valid assumption about the future is contrary
to a past trend. On direct, when you have the expert explain
his underlying work, spend little or no time on those aspects
of the work that are difficult for your opponent to attack
clearly even if you may be nervous about them. Leave them
for cross-examination. If you bring those points up on direct,
your defensiveness will only validate your opponent's challenge,
or confuse the jury, or both.
On the other hand, do use direct to prepare for and defuse
obvious challenges that your opponent can articulate clearly
Ask whether the expert has considered a point you know your
opponent will attack, and let the expert explain why the attack
lacks merit. Have the expert explain why a conclusion makes
sense, even though it is counter-intuitive. Be plain and simple.
Approach these problem issues fearlessly Do not hedge. Frame
your question so there is no misunderstanding the point:
Q. Mr. Taylor,
your report shows ABC's sales growing about twice as fast
in 1989 as ABC's sales grew on average over the preceding
5 years; the defendant assumed that ABC's sales actually would
have declined. Can you explain for us why you used the figures
that you did?
Your job
is to raise the subject obviously. Your expert's job is to
deliver the explanation simply and persuasively.
The second
point to remember about cross is that when you are finished,
your expert is not. It is obvious, but bears emphasis: Your
expert's testimony includes the cross-examination as well
as the direct. As a matter of fact, cross-examination will
be your expert's opportunity to be most persuasive. This means
you need not be exhaustive on direct. In almost every case,
the cross-examination of your expert will explore his underlying
work in much greater detail than you have.
Having your opponent cross-examine is almost always the best
thing that can happen, if you and the expert have prepared.
Why should that be true? Isn't cross where witnesses crumble?
Isn't it the enemy? Why rely on cross to do anything for you?
There are
several reasons. First, with any witness, time is your enemy
The jury's attention wanders, particularly when you are discussing
technical subjects. when jurors get impatient with difficult
testimony, they hold it against the side asking the questions.
If your opponent cross-examines the expert, most of the resulting
testimony will, despite the attack, provide additional support
for the expert's conclusions, and it is done on your opponent's
time.
Second, when your opponent tries to explore the underlying
work, the expert should have an advantage. This is, after
all, the expert's territory. The expert should have a better
grasp of the subject than the lawyer. And, perhaps more to
the point, your expert almost always sounds as if she has
a better grasp of the subject than the lawyer. Before long,
the jury usually is paying more attention to how the testimony
sounds than to what the testimony means-a phenomenon most
of us experience at some point listening to a speech, sermon,
or classroom lecture. When that happens, your opponent will
be spending time on an examination that conveys very little
information to the jury.
Cross-examination also generally is a better environment
for the expert than direct. During cross-examination, a tie
goes to the witness. Jurors know that the lawyer has the upper
hand in asking questions; unless the lawyer very obviously
makes her point, the witness wins. Because most of the expert's
work should be defensible, cross-examination lets the expert
score points. In fact, the expert has more latitude for advocacy
on cross-examination than on direct. On direct, advocacy suggests
bias; but on cross, advocacy often conveys earnestness, confidence,
and an honest effort to avoid the restrictions of unfair leading
questions. Advise your expert to avoid overselling those points
that are fairly debatable, but turn the expert loose on the
good ones.
A related idea: Points made by any witness in response to
hostile questioning will be more compelling than points made
during friendly direct. Jurors probably expect that direct
testimony is canned. They will be more impressed if the testimony
holds together after a hostile attack. After all, getting
a single off a major leaguer is a bigger accomplishment than
a grand slam in a church slow pitch softball league.
Finally, repetition assists comprehension and retention. Some
people won't get it on direct, but cross-examination may reduce
the expert dispute to manageable terms. Most lawyers approach
expert cross-examination by isolating the essential points
in dispute-the arguable flaws in the expert's work. They capsulize
these issues in an effort to make their point comprehensible
to the jury. The result is repetition of the expert's position
at least once. This is not necessarily wrong; the real problem
is that cross-examiners often attack too many issues, and
score only on a few.
Do not forget
the dramatic and atmospheric aspects of expert testimony Your
object is not to make your subject-accounting, for example-interesting;
no one can do that, least of all a lawyer or a CPA. Instead,
your job is to make the presentation of accounting evidence
interesting. Within limits, that is possible. You want to
keep the jury's attention for two hours at most, and to focus
that attention on a few critical points.
Try to put your expert on just after the best part of your
case. At that point, the jury will be most disposed to accept
the expert's conclusions. There are obviously other considerations
in determining your order of proof but this one is important.
Remember that you can use an expert for purposes beyond the
mere statement of an opinion. In explaining the basis for
his opinion, he can remind the jury of evidence helpful to
you and can even help you prove damaging facts based on factors
that might otherwise not come in.
Admitting the Inadmissible
Here is why: Rule 703 of the Federal Rules of Civil
procedure permits experts to base their opinions on facts
of a type reasonably relied on by experts in the field. This
includes facts derived from otherwise inadmissible evidence.
Incorporating particularly good examples of such material
in the expert's presentation helps keep the jury's attention.
In addition, otherwise irrelevant information may be admissible
to explain something about the expert's work. For example,
it sometimes happens that your opponent withholds evidence
during most of the discovery period. Courts do not ordinarily
permit testimony about pretrial wrangling and discovery disputes.
But, if late-produced documents require your expert to modify
conclusions contained in her report, the fact of that late
production should be mentioned to explain the reasons for
and timing of the changes. Likewise, when your opponent challenges
your attorney's fees, your fee expert should be allowed to
explain the kinds of abusive discovery conduct you had to
cope with. Such evidence about pretrial misconduct can be
prejudicial, but lawyers act as if the jury could never hear
it. Usually they will not, but sometimes your expert can testify
about some of it.
Within the
expert examination itself, you have only a few tools to work
with: yourself the witness, and the props you supply. With
these, you must create interest and drama. In cross-examination,
the adversarial relationship of the players has inherent drama,
even though lawyers can dissipate it by asking flat, complicated
questions. In direct examination, a lawyer must work much
harder to create life and excitement. You must establish a
personality, so that the jury sees and hears an exchange between
people. You must ask simple, clear questions, so the jury
can follow. Your questions should help the jury understand
why you ask them. And cross-examination can be your expert's chance to star;
he can be an advocate in a way that would fail on direct.
You should
try to be active in the courtroom. Even where court rules
require lawyers to ask questions from one place, try to create
opportunities to go get things-documents, posters, notebooks,
and the like-to bring movement to the presentation.
You also must be organized. Activity can hold people's attention,
but discordant activity is distracting. The 15 or 20 seconds
it takes to get a chart and place it on an easel in the jury's
view calls it to their attention. When the same job takes
30 or 40 seconds or more, while you make two false starts,
grab the wrong poster, and then knock the easel over, you
have lost the jury. At that point they usually think the presentation
is more funny than significant.
Use leading questions appropriately. The Federal Rules of
Evidence advise that leading questions should not be used
on direct examination of a witness "except as may be necessary
to develop his testimony." Don't be bashful about driving home
an idea with a leading question. An objection will simply
highlight the point. If you overdo it, of course, you may
undermine your expert's credibility and exhaust the court's
patience. In the main, the expert must do her own testifying,
but occasional leading questions do help focus the jury on
important points.
Other steps can help bring drama to your expert's presentation.
First, work extensively with the expert before trial. Make
sure he understands what you want to do and how you expect
him to respond. Use videotape to help him suppress distracting
habits and mannerisms. Do not skimp on preparation simply
because you fear that your opponent will call it to the jury's
attention and characterize it as "rehearsal." Jurors expect
preparation. Jurors appreciate an examination that proceeds
smoothly and comprehensibly It is easier to understand and
believe an organized presentation than a disorganized one.
Try to get
your expert out of the witness chair during the direct. A
witness is usually more credible when he stands up and moves
around. The best way to do this is to have the expert draw
or write something on a large pad of paper or an easel. You
want the jury to view your expert as a teacher, and most of
us remember teachers at the board trying to explain things.
What the expert draws or writes is less important than the
activity itself. Using the easel or a previously prepared
chart or model is primarily a prop to display the witness
in a better environment than the witness chair.
Use
of Props
What about the props you supply? Virtually every magazine
article on trial practice seems to say the following: We live
in a visual age; people comprehend more when they see something
than when they hear about it. Despite this, it is astounding
how many of the visual props we lawyers supply, supposedly
for the jury's edification, are indecipherable. Many cannot
be read, and many that can be read cannot be understood.
Demonstrative exhibits are often too small, too complicated,
too far away, and displayed too briefly. When your demonstrative
exhibits suffer from such problems, they not only fail to
help the jury understand, they detract from your presentation
because they distract or anger the jury.
A few well-chosen visual aids help add drama. They can emphasize
the significance of a part of the direct examination. They
add variety and break up the monotony. They really can help
people understand a point. But have a clear idea about why
you are using each one you introduce, and be sure each visual
aid is appropriate to the task.
Don't use too many charts. You will get confused, and so will
the jury. And remember, you may have to create charts on the
spot: when you prepare charts in advance, many of them
never get used, but it seems there is at least one you realize
you ought to have put together-but you did not. So get comfortable
with the blackboard or a pad of paper on the easel. Even a
badly drawn diagram, calculation, or graph may carry greater
weight with the jury than a nicer one prepared in advance,
because the jury saw the thing made by the person who sponsored
it.
Demonstratives can do two things: transmit information or
communicate impressions. To transmit information, a demonstrative
must be simple and large. A blow-up of a letter or memorandum,
for example, can give the jury a visual impression of the
document-the letterhead, the form of the letter, and so on-which
may be what you want. If you also want to transmit information
about some part of the content, make it large enough to read,
plainly identify the part you want read, and give the jury
time to read it, even if you or the witness also reads it
out loud.
If you want
to show that sales went up while profits went down, a large,
simple graph does that well. But if you want the jury to remember
that sales were $28,000,000, don't expect them to be able
to remember that from a chart containing many numbers. Charts
that contain a lot of information may create an impression,
but they do not transmit information very well. Such charts
can communicate concepts or impressions like "the company
was very busy;' or "all of a sudden, everything stopped?'
The details may not linger, however.
The expert report deserves special attention. Do not think
of it as just a discovery response. Think of it as a trial
exhibit. Make sure expert reports are prepared that way. Your
object should be to persuade rather than confuse or confound
the reader.
You are
not stuck with the initial report produced to your adversary
You can improve it as trial approaches. Of course, your expert
will be cross-examined closely on any changes, so you need
to be sure that those changes have a rational basis that the
expert can explain. In addition, remember that you are the
expert on what you can sell to the jury. It is part of your
job to eliminate from the expert's conclusions unsupportable
points and outlandish stretches or assumptions. You need to
decide which arguments sound silly. And do not forget to double-check
the expert's math.
The report should summarize the expert's opinions, explain
the basis for those opinions, and refer the reader to the
sources of information relied on by the expert. A narrative
report is appropriate for experts who testify to such things
as the standard of care in the community, custom and practice
in the industry, and other matters not primarily dependent
on calculations. Damage reports or engineering reports should
mostly contain the calculations that represent the expert's
work and conclusions.
Narrative reports should be written in language that a bright
sixth-grader can follow, although they must incorporate appropriate
legal standards. They should be short and to-the-point. They
should be organized clearly; numbered paragraphs work well.
In describing the basis for an opinion, quote particularly
damaging evidence if it is short, plain, and persuasive.
A final aspect of presenting your expert is cross-examining
the other side's expert. A lot of lawyers look forward to
this. Expert cross-examination usually covers a limited, well-defined
subject matter There are rules and boundaries that the lawyer
can master. Lawyers can learn enough about knee surgery, the
operation of steam boilers, accounting, or investment banking
to debate the subject creditably with an expert. Because attorneys
must learn about these things in preparing the case, they
hate to let their learning go to waste. what they sometimes
forget is that it took them weeks, or even months, to get
that education, while the jury has only a few hours. There
are plenty of devastating expert cross-examinations that have
left lawyers feeling fine-until the verdict.
In the classic old book, The Art of Cross-Examination, Francis
Wellman cautions lawyers against cross-examining experts on
the intricacies of their subject. Wellman's point was that
lawyers rarely have the ammunition to take the expert on directly
in the expert's own field. Today, that is less a problem;
for the most part, lawyers have time to master enough of the
field to argue technical points with the expert safely. And
they get much more discovery than existed in Wellman's day.
The real problem is that when the discussion gets complicated,
(and the attacking lawyer is fully immersed) jurors begin
to drop off. They are listening to an exchange that sounds
expert, without hearing the substance of the cross-examination.
The expert wins.
Effective
cross-examination of an expert begins, and sometimes evaporates,
with the expert's deposition. Don't do too much. An expert's
deposition can tell the expert, and opposing counsel, precisely
what you will ask on cross-examination. Do not telegraph information
through the deposition. Just find out the expert's background,
what conclusions he reached, the reasons for the conclusions,
and the source of the expert's information.
Then decide how you want to handle the expert at trial. Occasionally,
the expert's conclusions can be adapted to your own case,
especially when you have two opponents who are fighting each
other. More frequently, some of the methodology, data, and
assumptions used by your opponent's expert is similar to what
your own expert used. In such circumstances you can use the
opposing expert to validate part of your expert's work.
In attacking the opposing expert, you want to identify reasons
the jury should believe your expert instead of the person
you are about to cross-examine. These must be reasons that
people of ordinary intelligence can grasp quickly in court.
The main reasons are bias, lack of disinterestedness, mistakes,
unreliability, inconsistency, and silliness.
Money and Credibility
Jurors expect experts to be paid for their work. They
also may not be surprised to discover that the experts are
aligned with one side or the other-that they typically testify
for defendants or plaintiffs. Still, you can exploit some
of these factors. Who was paid more-your expert or your opponent
's? How do the expert's fees compare to the damages, for example,
or to the amount the party could have spent to protect itself
in the first place? Does the other side's expert do anything
but testify?
Mistakes in the expert's work, unless they are trivial, are
usually worth calling to the expert's attention on the stand.
Make the expert correct the error by hand, on your copy of
the expert report or on a big blow-up of part of a chart he
prepared. This can be especially effective if one error leads
to a cascade of changes in calculations that flow from the
erroneous number. Ask the expert how he can be certain that
there aren't other mistakes in the report.
Bias, interest, and errors are simple concepts; they cannot
tolerate heavy-handed treatment. Make your point and move
on. Jurors understand that some ideas need repetition, but
they do not appreciate lawyers who underestimate their common
sense.
Lawyers
love to impeach witnesses with prior inconsistent statements.
With experts, there can be a rich fund of such materials:
the expert's past work; earlier versions of the expert's report;
and the expert's deposition, among other things. But be selective.
Effective impeachment with a prior inconsistent statement
usually requires short, obvious contradictions. This is especially
true with experts. They are usually trained, and many are
experienced witnesses, good at explaining things. Most inconsistencies
are likely to be matters of degree or technical distinctions,
things a skilled witness can muddy. Your task is to isolate
the inconsistency and question the expert about it in a way
that limits his wriggle room. This often means that you need
to let the inconsistency speak for itself: If you bludgeon
the expert with it, you cannot prevent him from trying to
explain it.
Cross-examination may not be the best way to take advantage
of inconsistencies, especially if the point of the inconsistency
needs explanation. There are alternatives: You can exploit
inconsistencies with the expert's published work by reading
from it during argument (assuming the expert has agreed on
the stand that his own work is authoritative). Or you can
have your own expert point out the inconsistency between the
published and the courtroom pronouncements. You can also let
your expert explain the significance of a change in methodology
or assumptions between one version of the opponent's report
and the trial version.
Lawyers
are taught to try to control adverse witnesses, but sometimes
it is better to let an opposing expert ramble. Let her answer
nonresponsively, argumentatively, or evasively. Jurors don't
like such antics. They want experts to answer simple questions
plainly. An expert who evades without provocation diminishes
her credibility; in extreme cases, you may just want to let
it go on. Fighting too much with an evasive expert may convert
the expert's approach from something that suggests bias to
something that suggests conviction.
When you
take on the expert's work, focus your attack. Avoid recapitulating
the expert's conclusions or rationale. The point is that the
expert's work is flawed, not that the jury should arrive at
a different conclusion than the expert did. Here you do want
to control the witness; ask closed-ended questions. If an
assumption is contrary to two facts, simply make the witness
agree that it is contrary to the first fact and then that
it is also contrary to the second. Don't ask why. Be realistic
about what you can accomplish. An expert who defends his assumptions
credibly probably wins; this is true even if your long study
convinces you that each assumption pushes the limits of reasonableness.
Another approach is to try to get the expert to acknowledge
that, for each of his assumptions, there is an alternative
that is also reasonable and less favorable to the expert's
conclusion. You can then later point out that, in each case,
the expert has chosen the more aggressive assumption.
The
Big Picture
Finally, step back from the case and see whether there
is a larger picture you can draw that makes the expert's conclusions
look silly. In many a lost profits case, for example, the defense
expert constructs a model that "proves" that the defendant's
conduct saved the plaintiff from pouring good money down a
rat hole. The problem is that this is inconsistent with what
the defendant actually did; if the enterprise was a loser,
why did the defendant interfere with the plaintiff's contracts,
stifle competition, or steal inventions?
In reconciling
expert evidence, jurors are largely choosing between people,
and not between ideas, concepts, or answers. Plan your presentation
of expert evidence with that in mind. Give the jury reasons
to believe your expert instead of confounding them with a
lot of technical information. Your goal should not be to try
to teach jurors a new, complex subject quickly by direct and
cross-examination. There is too much to learn, and the courtroom
is poorly suited to the task.
Mr. Wawro
is a partner in the Houston firm of Susman, Godfrey, L.L.P
He wishes to acknowledge the very perceptive contributions
to this article by his former partner John McArthur of San
Francisco.
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