Winning the 'battle of the experts' at trial

Some trial lawyers and judges believe that jurors discount expert testimony in civil cases because competing opinions "fight to a draw." This perception is wrong. No other part of the evidentiary phase of a civil trial presents as much opportunity for juror engagement and the partisan taking of sides by jurors as the cross-examination of an important expert witness for the other side. It is the time in the trial when borderline cases are won and indignation that can find its final reflection in a verdict is created.

Experienced trial lawyers know that a brilliant, incisive and destructive cross-examination of a lay witness can backfire if the jury identifies with and becomes protective of the witness. That was a lesson that I learned the hard way, early in my career, and I never forgot it. However, with an expert witness, that problem falls away. A well-prepared advocate can enlist strong jury support by meticulously exposing and discrediting the expert opinion testimony of someone who has been proffered and promised to the jury as having special knowledge, experience or expertise. This is particularly true, when a concise cross can expose the expert as lacking the expertise suited for the case or as being used to obscure the truth. Indeed, the failure to effectively challenge authoritative opinions will be noted by jurors and can provide the basis for a devastating closing argument by the opponent.

With that background in mind, the following are five key considerations (which are not subject matter-specific) around which an effective expert cross-examination can be constructed. They can and should be used in combination where appropriate and woven into a cross examination that has a central thesis, is concise, and traces an arc or story-line that the jury can follow like a map. Of course, the cross-examiner must have in hand an expert deposition which thoroughly explores, in depth, all opinions to be offered by the expert at trial, all the bases for those opinions, a thorough description of all materials considered or relied upon in formulating the opinions, and lists the assumptions the expert has made in reaching conclusions. Relying on that deposition, a theory of the cross-examination can emerge which neutralizes the impact of the expert, attacks the foundation of his or her conclusions, elicits damaging information that may be important to the entire case or valuable for impeaching other witnesses, undermines the credibility of the sponsoring party, and even collaterally attacks the theory of the opposing side's case. These are lofty goals for a single cross, but they can be achieved by doing the following:

1. Establish that the expert has ignored, was not shown, or has not analyzed in sufficient detail some piece of critical evidence in the case. This cross-examination technique causes the jury to doubt the impartiality of the expert, as, more often than not, the materials which the expert analyzes have been provided by opposing counsel who are perceived as naked advocates. If possible, simply establish that the expert relied only on what counsel provided. Alternatively, if clear from the deposition, list the key evidence that the jury knows about, that the expert did not consider. Did the expert ask to see evidence that was not provided by counsel? That's gold. Did the expert want to perform studies or empirical analyses that the other side prohibited? Also gold. This question, if merited, might also dovetail nicely with an overall trial theme that the other side did not perform tests necessary to prove their case. If the expert is being asked to opine on damages, did the expert thoroughly analyze alternative evidence of causation? These are but a few examples of showing how the expert was not independent, but rather guided to a conclusion by what counsel chose to share.

2. Carefully confine the expert's opinions so that they may appear relatively insignificant to the jury. I call this "putting the expert in a box." Have a list generated based on the deposition of all the topics on which the expert might arguably have been qualified to testify but on which he or she is offering no opinion for the jury. To a lawyer, this line of cross, which may be very short, can seem so obvious as to be easily ignored. That's a mistake. Confirming that a damages expert has no opinions on liability creates the illusion to the jury that the expert is assuming too much. If the allegation in the case is fraud, and the expert has experience in forensic accounting but has not done asset tracing or other investigation typical to ascertain whether wrong-doing occurred, that must be pointed out. One nice way to cap this line of inquiry is to ask a series of important hypothetical questions based on the evidence that the jury has heard, but on which the expert will not be able to opine, because he or she is in the box created by the examiner.

3. Reinforce your client's trial themes by having a theory of the cross-examination that is consistent with your client's trial position. This part of the cross-examination, conducted carefully through leading questions and based on those parts of your client's case that are as incontestable as possible, can get the jury re-acclimated to your side of the arguments. Remember that everyone has just sat through a direct examination of the expert which, if done properly, has offered evidence that is harmful to your side; the jury needs to be reminded that there is another side to the coin. This piece can also take advantage of your side's expert opinions, particularly if the opposing expert has not offered rebuttal to that evidence.

4. Impeach the expert's opinions with his or her own words. I like to save this to the climax of the cross. After having listed evidence that the expert has not considered, detailed analyses they have not done, put them in a little box, and told your side of the story through a short set of leading questions with reference to trial evidence, culminate (if possible) by finding gems in their prior treatises, articles, or testimony that can be construed as inconsistent with the work or opinions they are offering in this case. Nothing is more devastating to the expert's credibility and the effect on the jury will be lasting.

5. Listen carefully, react if possible, and know when to sit down. A great cross is rarely scripted. Parts of it are -- the lists discussed above, for example. But the best moments, and even the decisive ones, are those that cannot be anticipated. When the expert steps outside of their disclosed opinions or true expertise, be prepared to pounce. If the expert says something unexpected that is demonstrably contradicted by evidence in the case, be nimble enough, and so completely familiar with the trial record that you can confront the expert with it on the spot. The most memorable crosses of my career had such an incident and the consequences for the other side were dire. If I had accomplished my other key points, I generally knew that this was the moment to say the magic words -- "nothing further."

This article has been prepared for informational purposes only and does not constitute legal advice. This information is not intended to create, and the receipt of it does not constitute, a lawyer-client relationship. Readers should not act upon this without seeking advice from professional advisers. The content therein does not reflect the views of the firm.This article has been prepared for informational purposes only and does not constitute legal advice. This information is not intended to create, and the receipt of it does not constitute, a lawyer-client relationship. Readers should not act upon this without seeking advice from professional advisers. The content therein does not reflect the views of the firm.