keep the cross-examination short and use your own expert to address the other side’s anticipated expert’s testimony. It is critical to control the expert’s responses by keeping your cross-examination focused. Allowing the expert to opine with open-ended questions can result in the expert displaying to the jury their expertise and credibility on the subject, and running a replay of all the same harmful testimony they just offered in direct examination. Instead, if you can attack the expert collaterally as being unprepared, over eager, stretching the truth, or biased, it can often be more effective to get the jury to become suspicious of the witness’s entire testimony. Some fruitful areas of attack: • Is the expert honest but mistaken? • Is the expert purposely exaggerating or shading their testimony? • Is the expert relying on a faulty factual assumption? • Did opposing counsel provide insufficient or incomplete material to form their opinion? • How often does the expert testify for only one side? • Is their income contingent on getting the “right” answer repeatedly in other cases? • How often have they testified for this same defense attorney or law firm? With few exceptions, the expert will be far more knowledgeable on the subject matter than the attorney tasked with cross- examination. It is important not to come across as a junior doctor or amateur accident reconstructionist. The cross- examining attorney can find themselves wading into technical areas in which the expert’s knowledge is far superior. That is why it is critical to prepare and plan the attack long before stepping into the courtroom. Be careful shooting it out with “old hand” experts and hired guns. Some professional witnesses or experts are always hired to come to say the same things. These witnesses have chewed up many cross-examiners. They keep coming back to court because they are so effective. If you are not careful, and you halfheartedly go after the witness on bias, you’ll get answers like “I’m just here to tell the truth the best I can as an epidemiologist” or “I’m not testifying for or against anyone, I just call balls and strikes.” Point out to the jury the assumptions the expert relied upon. Experts typically do not have personal knowledge of the facts of the case. Rather, they often rely on facts provided by the hiring attorney, and the experts generally are basing their opinions on the assumption that those facts are true and the material they were provided to review was complete. It may be easier to attack the facts the expert is assuming to be true or an incomplete expert file, rather than risk a deep debate with the expert about their area of expertise. This is particularly true if the expert’s track record and qualifications See The Expert Witness in Your Next Trial p. 24 23 Trial Lawyer | Winter 2025
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