Mastering the Art of Expert Witness Testimony: Surviving Expert Witness Cross-Examination

The expert witness doesn’t need to fear cross-examination if they have done a competent analysis, documented it well, presented it effectively on direct, and are aware of the opposing lawyer’s tactics for cross.

There are 21 tactics you can apply when you are on the witness stand under cross-examination:

Be confident in your analysis and conclusion. You haven’t ignored weaknesses in your opinion, you have considered them and incorporated them in your analysis.  

Be thoughtful and scholarly; don’t be cocky or concieted.  

Maintain a calm, scholarly attitude.

Don’t treat the cross-examining lawyer any differently from the way you treated the examining lawyer.  A different attitude toward the opposing attorney will make you look biased and argumentativebe civil and respectful. 

Don’t try to defend your analysis as though it’s perfect.  Expert analyses are never perfect and you shouldn’t pretend yours is.

Maintain respect, but confidently defend your opinion.

Don’t be drawn into a staccato pace of cross-examination. This is a common tactic used by opposing lawyers.  Use pauses before each answer to help control the pace.

Don’t be afraid to agree with opposing counsel, if the question requires it. 

If they catch you on a point, give it to them.  It’s foolish to try to defend the something that’s indefensible.

If they ask you to change your analysis based on a hypothetical fact, consider including the word “hypothetical” in your answer, rather than agreeing with the resulting change.

Or, you may choose to state something like: “Mr. Attorney, the characterization of the facts in your question is simply inaccurate…”

Here’s another response to a hypothetical: “I will be glad to answer your hypothetical, but it doesn’t conform to my understanding of the facts.”

If you are forced to answer an inaccurate question with a “yes” or a “no,” try this:  “A one-word answer would be misleading. May I have the opportunity to explain?”  then the burden shifts to the attorney to either allow you to explain, or be required to give a misleading answer.  

If a brilliant question is presented, don’t hesitate to reply and bounce it back to them. For example, “Could you repeat that question, mr. Jones,” or “I didn’t exactly understand that question, mr. Jones.” give yourself time to think, without a long silence—or even a short one—in front of the jury.

A tactful cross-examination will build up gradually, seeking agreement on small, obvious points leading up to a seemingly logical conclusion that goes against your position. Without being argumentative, try to avoid agreeing with all the underlying points of the buildup as they are presented. 

Open-ended questions allow you to explain an answer and lawyers don’t usually employ them on cross-examination.  If you are asked an open question, take advantage of the opportunity to re-explain that part of your analysis.

If you have the opportunity to explain an answer, do it through a calm, organized narrative that lays out the high points of your argument.

Use an aggressive answer very judiciously. You may get an opportunity to take a “swipe” at opposing counsel, but do it very cautiously, and infrequently. If you do it too often, it looks like you are argumentative.  

For any question that starts with “Isn’t it possible…,” the answer has to be “yes.” but the question is: is it reasonable? Or is it likely?

Don’t agree with a denigrating characterization of your analysis. For instance, “so, you just picked a number, then?” or, “After you glanced at the medical record, you guessed that enough time was not allowed for the procedure?” in your answer, politely disagree with the inaccurate characterization in the question, and do it before you give the (possible) affirmation or denial. 

If you are asked to recalculate or re-examine some aspect of your testimony, don’t feel the need to do it hastily. If you require time to reconsider something, simply tell the court that you can’t do this immediately and ask to take a break and return with the new information. 

There are various categories and styles used by opposing lawyers to engage in cross examination. Your understanding of these helps to ease the burden of cross-examination.

Generally, cross-examination falls into one of the following five categories:  

Lack of qualifications.

Superficial or incomplete analysis.

The analysis was based on erroneous facts.

The conclusions are incorrect (bad analysis and/or rationale).

The conclusions are inconsistent with other analyses or testimony previously given.

There are also various styles of cross examination: 

The friendly “I-just-want-to-understand-what-you-did”… approach.

The polite “we-agree-on-a-lot” …. Approach.

The “we have a few-areas-of-disagreement” approach.

The direct confrontation approach, pointing out errors in the witness’s analysis. This one is the most difficult to withstand, and it should be. There shouldn’t be errors in your analysis.  

Pointing out that the witness has relied on information from others that you have assumed to be correct. This one is easy: the expert should concede what they relied on and, if it is wrong—hypothetically—the conclusion is hypothetically wrong also.

The boisterous, argumentative lawyer who disagrees with everything the witness says. 

These categories and styles are a comprehensive list of what opposing lawyers might ask you on cross-examination.

Use these smart tactics to defend yourself and benefit your clients in the courtroom. 

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