New York Personal Injury Trials
The Virtue of Patience:
Setting Up Expert Witness on Cross-Exam
New York Law Journal, Wednesday, July 27, 2005
Ben B. Rubinowitz and Evan Torgan
Undoubtedly, cross-examination is an exciting
and often dramatic part of the trial. Too often, however,
lawyers are overly eager to attack and, thus, miss opportunities
that would otherwise make for a more compelling summation.
The damaging information elicited during
cross will seem far more potent, if instead of trying to take
out the witness immediately, the lawyer expands the cross by
setting up the witness to fall.
To accomplish this feat, the lawyer must
first commit the witness to a foundation in the abstract that
will later be used to attack him. In doing so, the sharp
cross-examiner anticipates the avenues of escape a cornered
witness will try to find and eliminates in advance a witness'
wiggle room when the questions get more probing and precise.
After securing agreement with seemingly noncontroversial facts,
you then must lock the witness into a position, which will later
be attacked. Third, the lawyer must use the witness' own words
and admissions during his earlier testimony against him when
going in for the kill.
This tactic works well with so called
"expert" witnesses. If we carefully analyze the opinion offered
by any expert in any field in any court, each expert is, in
effect, saying the same thing every time he testifies. Each is
saying: "I am honest," "I am believable," "I am credible," and
of course, "you should accept my opinion because I am a pillar
of truth and knowledge.'
It is cross-examination that allows you the
opportunity to expose the witness as one who is less than
honest, not believable, not credible and, simply put, a waste of
everyone's time.
The Set-Up
Imagine the scenario in which an
expert orthopedist witness has testified that your
client's herniated disk was not sustained in
the accident, as you claim, but instead represents a
degenerative pre-existing condition. You know from his
expert report that he has failed to review medical
reports and MRIs from doctors
who saw your client some time after the accident.
That fact, by itself, might be viewed as insignificant or it
could serve to undermine his credibility. Cross-examination
could begin, in typical fashion, by asking one question in a
loud prosecutorial tone:
Q: You never reviewed the subsequent medical records
of Dr. Gold, did you?
Here, you, as the trial lawyer will get one answer and then
be forced to move on to the next subject.
'Voice of Reason' Form
By taking your time, however, and setting up
the witness by laying a strong foundation for attack, you will
not only receive an answer to the ultimate question, but will
enhance your case by undermining the witness' credibility
through a more methodical approach. There is no need to yell. A
calm, quiet and deliberate approach will serve you well. Your
questions--all asked in the "voice of reason" form--will prevent
the witness from disagreeing with your points for fear of
looking and sounding foolish.
Q: In reaching your opinion, you took your time to conduct a
thorough exam?
Q: One that was meaningful, true?
Q: An exam that you believed to be fair?
Q: And certainly one that was thorough and complete?
Q: In order to be thorough and complete, you needed to look
at all relevant records?
Q: That would be in keeping with your own professional
standards, right?
Once the witness has affirmed the
all-encompassing nature of his investigation, you can bolster
your attack by turning the questions around:
Q: You would agree, wouldn't you, that if you
didn't take the time to conduct a thorough review, your opinion
would be less than fair?
Q: If you didn't take the time to view
appropriate records, the foundation for your opinion would be
less than adequate?
Q: Indeed, your opinion might be less than accurate, true?
Q: You certainly wouldn't come to court and
give an opinion to a jury without ensuring that your opinion was
based on all the relevant facts, true?
Although you could, at this point, get to the heart of the
issue (the doctor's failure to review the record),
you can build up the doctor's inexcusable failure to review this
record even further.
Q: Doctor, did anyone prevent you from reviewing (this
medical record)?
Q: Did any of the lawyers who hired you suggest that you not
look at the record?
Q: Did the say, point blank: "Whatever you do, make sure you
don't look at that record?'
Q: Well, when you teach residents at your hospital,
you wouldn't tolerate it if one of your students failed to
review all of a patient's records before
reaching a treatment plan, right?
Q: That would be flat out wrong, true?
Q: It would be unacceptable, correct?
You are now prepared to confront the witness
with his failure to review this record. At this point, you know
the witness will certainly try to minimize the significance of
the fact, most likely professing the reasons why that record
holds no value in the context of this lawsuit. Such a response
is easily attacked:
Q: Two minutes ago, doctor, you told this
court and jury that it was important to review all relevant
records in reaching an opinion?
Q: You certainly could have looked at this
record to determine if it supported your opinion, true?
Q: You could have determined, before reaching
an opinion, the value of another doctor's
findings?
Q: You're now forced to say it's irrelevant to justify your
failures here?
Q: When you said all relevant records should be reviewed, did
you really mean all records which support your opinion?
Q: Did you mean, forget the records which might disprove your
opinion?
Q: Is it your testimony, doctor, that you review a record
when it helps you, and ignore a record if it hurts you?
Q: The bottom line is, doctor, you never
took the time to conduct a complete review of all records. Isn't
that true?
Note how much more effective these questions are as a result
of the initial set-up.
Use Witness' Own Testimony
Indeed, let's revisit that scenario in which
the eager cross-examiner begins by pointing out the failure to
review the record, and then seeks admissions as to its
importance. When the witness denies that it was important to
review the record or that good practice required him to do so,
this cross-examiner can do nothing other than argue with the
witness, rather than the far more powerful technique of using
his own testimony against him:
Q: You never reviewed that (subsequent medical
record), right?
A: Yes.
Q: Didn't you need to see that record before reaching an
opinion, here?
A: Not at all.
Q: Well, isn't it important to see all of the
medical records relating to a patient before reaching an
opinion?
A: This record would not have affected my opinion at all; may
I tell you why?
You can see that by failing to close off the
avenues of escape in advance, the skillful witness will beat you
to the punch and justify his actions.
In this instance, you are left hoping that
the jury understands the significance of the failure to review
the record, as opposed to having that point made clear by the
witness himself.
One of the goals of cross-examination is to
permit you to make the most powerful argument on summation that
you can.
The attorney who cross-examines without
investing the time to set up the witness, risks relying upon his
own powers of persuasion. While practitioners of this technique
can ensure a powerful argument, consider the difference between
what can only be viewed as a weak summation and one which was
made strong by a well-designed set-up:
-
Summation No. 1: This expert came to court
and gave you an opinion without looking at the subsequent
records. Don't you think that was something he should have done?
Wouldn't it have been better if he really looked at all the
records?
-
Summation No. 2: When you think about this
expert's testimony, you need look no further than his own words.
Don't his own words undermine his credibility? Of course they
do. First he told you how important it was to review medical records like the ones (he failed to review). He
left no doubt that it was "unacceptable" to reach an expert
opinion without all of the appropriate data. Then, after
admitting, in effect, he did just that in this case by failing
to review all of the records, he tries to sell you on the idea
that that record just happens to be irrelevant. He can't have it
both ways.
Conclusion
The art of patience during cross-examination
is not as easy as it seems. Although one can outline something
like the scenario set forth above in advance, an exaggerating
witness will invariably say something surprising and eminently
attackable during direct examination. The well-prepared lawyer
will begin to salivate in anticipation of cross-examination on
that point. Still, it is crucial that the appropriate set up be
maintained in order to get the most mileage from your
cross-examination of this expert.
Ben B.
Rubinowitz, a partner at
Gair, Gair,
Conason, Steigman & Mackauf, is an adjunct professor at Hofstra
University School of Law and Benjamin N. Cardozo School of Law. Evan Torgan, a member of Torgan & Cooper, is an
adjunct professor at Cardozo School of Law.
Gair, Gair, Conason, Steigman & Mackauf specializes in the most serious and significant
personal injury and
general negligence cases.
The most common type of personal injury claims are
automobile accidents, accidents at work,
construction accidents and
defective product accidents
.
