Here are some ideas, courtesy of Professors McElhaney and Mauet, on effectively cross-examining your opponent’s expert witness at trial.

1. Make Him or Her Your Own Expert. Professor McElhaney suggests you look for places where your opponent’s expert agrees with your theories in the case. For example, if, in a personal injury case, both experts mostly agree on the severity of the damages and future treatment, but differ on causation, focus on where there is agreement. He says:

“Note that the defendant’s own doctor admits that the plaintiff will be subject to sudden seizures for the rest of his life; that this form of epilepsy can only be treated, not cured; and that the plaintiff’s condition can put him out of work as a machinist and means he can never drive again.

If you have a strong case on causation, you may decide it is better to make this witness your own on the issue of damages than to try to beat him down on the subject of cause.” (Litigation (ABA 1995) 165.)

2. Attack His or Her Qualifications. “No matter how well-qualified the witness,” McElhaney reminds us, “there is always a higher level he has not reached.” (Id.) Used subtly, this can also serve to bolster your expert’s credibility if he/she has better credentials.

3. Narrow His or Her Expertise. Professor Mauet  points out that, “[o]ften an expert will appear to be highly qualified, yet his actual expertise and experience are in areas different from those involved in the case. The cross-examination technique is to build up the witness’ real expertise, then show that this particular expertise is not directly applicable to the type of case on trial.” (Fundamentals of Trial Techniques (3rd Ed. 1992) at 266.)

4. Attack His or Her Facts. I see two possibilities here. One is if you can establish an opinion rests on a faulty or controversial factual premise, such as a date, measurement or time. The other, highlighted by McElhaney, capitalizes on the fact the expert did not do factual investigation himself, but is relying instead on the reports of others. He gives an example of an effective examination:

“Q. Doctor, can we agree that your opinion can be no better than the information on which it is based?

A. Well, yes, I guess so.

Q. If the information you have is not accurate, then the opinion would have to suffer too?

A. Of course.

Q. Which is why you would rather gather the information yourself than have to trust some source you have not worked with before?

A. Absolutely.

Q. But you were not given an opportunity to do that in this case?

A. Well, not exactly. No, I wasn’t.” (Litigation, 167.)

5. Vary The Hypothetical. McElhaney explains this approach as follows:

“You are permitted to change the facts around to see at which point they alter the expert’s opinion — depending on whether the question on direct examination originally was asked as a hypothetical.

You can insert facts you feel were left out on direct, or take out facts you feel should not have been included.” (Id.)

Let me go on record here that I view this as an advanced technique, and an opportunity to ruin an otherwise solid cross-examination. Ideally, you would have covered this ground with the witness in a pre-trial deposition, so you know what the answer should be and can hold the witness accountable if he/she strays. Otherwise, an experienced expert might hand you your head on a stick if you are not meticulously prepared.

6. Use The Expert To Bolster Your Own Credibility. Mauet suggest it can be “useful to cross-examine an expert to establish your own expertise in the subject. You can do this by defining technical terms or describing technical procedures and having the expert agree that you have defined or described them correctly. Use a treatise to obtain accurate definitions and descriptions. If this expert disagrees, you can impeach him with the treatises.” (Fundamentals, 267.)

7. Establish His or Her Compensation Bias. Mauet writes: “Inquire into professional fees charged and whether they have already been paid.” But he reminds us to “[k]eep in mind . . . that trials are a two-way street. Your opponent can do to you what you contemplate doing to him. Before pursuing this approach, make sure your own experts are less vulnerable than your opponent’s.” (Id., 266.)

8. Identify Additional Steps The Expert Did not Take. Mauet suggests we “[d]emonstrate that the witness did not do all the things a thorough, careful expert should have done. Demonstrate that a variety of tests could and should have been performed to arrive at a reliable opinion in this case.” (Id., 267-68.)

There. Now go get ’em.

In my last post, I attempted to describe what has come to be known as the Reptile technique of discovery and trial presentation, as advocated in the book, Reptile: the 2009 Manual of the Plaintiff’s Revolution. Again, the goal with this technique is to invoke the reptilian brain of jurors, which thrives on evolution, and therefore maximizes “survival advantages” and minimizes “survival dangers.”

As Reptile becomes more common, it falls to us to ensure that our lay and expert witnesses are adequately prepared to deal with the technique during deposition. To better understand what your witness will be up against, here is an example of a Reptile examination of a medical expert concerning a doctor’s care:

“Q: Physicians are not allowed to needlessly endanger patients?

A: Correct.

Q: That’s the standard of care?

A: Yes.

Q: When diagnosing or treating, do doctors make choices?

A: Yes.

Q: Often, several available choices can achieve the same benefit?

A: Yes.

Q: Sometimes, some of those are more dangerous than others?

A: Yes.

Q: So you have to avoid selecting one of those more dangerous ones?

A: Correct.

Q: Because that’s what a prudent doctor would do?

A: Yes.

Q: Because when the benefit is the same, the extra danger is not allowed?

A: Yes.

Q: The standard of care should not allow extra danger unless it might work better or increase the odds of success?

A: Yes.

Q: So needless extra danger violates the standard of care?

A: Yes.

Q: And there’s no such thing as a standard of care that allows you to needlessly endanger a patient?

A: Yes.”

Imagine your client is a doctor. He/she treats a patient suffering from an ailment for which multiple treatment options are available. At least when I was in law school, we learned that a doctor is held to the standard of care that a similarly qualified practitioner would have performed under the same or similar circumstances. Yet, it is difficult to take issue with the “umbrella rule” that “A doctor is not allowed to needlessly endanger patients.” No one should be allowed to “needlessly endanger” anyone, right?

The rub here is the word “needlessly.” Sure, if there is a 100% fail-safe, side-effect-and-risk-free treatment option, then the choice for the doctor should be simple. In the real world, however, nothing is “risk-free.” Every treatment has risks and benefits which must be weighed and evaluated. And the jury must understand this. Practicing medicine is not a game of darts. The problem with the above set of questions, however, is that they (purposely) leave no room for the crucial weighing of risks and benefits. The Reptile strategy works best when jurors sense at a primitive level that the defendant doctor is out there, on the loose, preying upon unsuspecting patients, and the only way to stop him is by returning a monster jury verdict.†

The challenge for your witness, then, will be to ensure that she does not get boxed in by questions that leave out the weighing of risks and benefits. Remember I generally take an “activist” role in defending depositions, which means I will do everything within my (albeit limited) power to prevent my witness from being bullied into answering an unfair question. Thus, to a question like, “Physicians are not allowed to needlessly endanger patients?” I would object that this question is vague, ambiguous, unintelligible, overly broad and presents a hopelessly incomplete hypothetical. I would challenge the examiner to be more specific about what he/she means by “needlessly” and “endanger.” I would hope that, even if the examiner ignores my invitation to re-frame the question (as I expect she will), the judge will later agree that, in the real world of ailments and treatment options–and assuming the doctor did not perform surgery drunk–the phrase “needlessly endanger” is functionally meaningless.

Let’s assume, however, that the examiner ignores my objections and the court overrules them. The witness needs to be prepared to deal with this kind of question. And I believe she can learn, with practice, not to get boxed-in by questions that are frankly absurd. First, as I noted in my objection, the question is vague, ambiguous and unintelligible. The deponent should refuse to answer any question until she feels the meaning is crystal clear. I submit that “needlessly endanger” is far from crystal clear. If the examiner steadfastly refuses to break down or define what she means by “needlessly,” then the deponent should re-frame the question in her answer in a way that makes it reasonable. I’m no doctor–I don’t even play one on TV–but I believe the following answer beats “correct” any day:

“Q: Physicians are not allowed to needlessly endanger patients?

A: Correct. If you mean in prescribing treatment or medication, must a doctor consider and balance the risks and benefits of all treatment options available and known to him, I would agree with that. Otherwise, I don’t understand your question.”

Your witness must refuse to be drawn into empty over-generalizations. She needs to be prepared to endlessly reframe unfair questions, lest she will commit herself to enormous, sweeping “rules” or standards which have no real relevance or application to the concrete facts of the case. This actually holds true in any kind of deposition. The only difference with Reptile is that the questions will be cunningly tailored to prey upon jurors’ unconscious fears that doctors like your client are out there “needlessly endangering” patients like the juror and his/her family, and must be stopped. If your client did not “needlessly endanger” the plaintiff, but simply prescribed one among many accepted treatments, then the jury must–absolutely must–understand the balancing of risks and benefits that physicians undertake every time they prescribe a treatment. They can still conclude the doctor breached the applicable standard of care, but they should only do so based on an informed application of the appropriate standard to the specific facts.

†Let me say here that, while my practice does not include suing doctors for alleged malpractice, I do not have a built-in bias against plaintiffs or their lawyers.

Litigating any case is stressful business. But I had a real nail-biter some time back. It was a product liability case and my client was a small mom-and-pop outfit that supplied a component which had been materially altered, mis-installed, and ultimately caused a rather horrendous accident.

Legally, it should not have been a difficult case to defend. The problem I found myself having was grasping exactly how the alteration and mis-installation had ultimately impacted my client’s component. Any product liability lawyer will tell you this was crucial to the defense. The technical issues were pretty complex, at least for me (a philosophy major, not an electrical engineer), and no matter how hard I tried to understand, no matter how much I thought I’d finally “got it,” I would struggle anytime I tried to explain how the alteration and mis-installation had fouled up my client’s product.

In any other case, I would have relied on our technical liability experts to teach me all of the technical details I need to know. The problem here was that my client was defending the case on a shoestring budget. If we weren’t careful, this case would bankrupt his company. He insisted that he would serve as the primary expert, since he was an engineer who’d invented the component in the first place and nobody knew the technology better. The obvious issue with this was he has no cloak of independence. His testimony would be viewed by the jury as completely self-serving; his opinions suspect as such. The less obvious issue that I had with this plan was the fact that, while my client was undoubtedly a first-rate engineer, his teaching skills were less than stellar. If he couldn’t teach me, how could I expect him to educate the jury? Meanwhile, my opponent was retaining expensive, experienced testifying experts from Exponent, etc.

I typically wouldn’t hire anyone as an expert who couldn’t help me understand, since (1) my comprehension of the technical details is absolutely crucial to my ability to confront the plaintiff and her experts, both in discovery and at trial; and (2) our expert’s ability to educate someone of less-than-genius-level intelligence (i.e., me) is going to be needed in order to help the jury understand why my client can’t be liable. The importance of an expert’s ability to educate the trial lawyer, as well as the lawyer’s responsibility to conduct his/her own outside learning, is discussed by Professor McElhaney, in Litigation. He says:

“The first job for the [expert] witness is to explain everything to you [the trial lawyer]. You have to keep asking questions and demanding answers until you are satisfied. Do not just rely on the witness, either. Read as much additional literature as you have time for; it is not just background information. Learned treatises that support the witness are admissible under Rule 803(18) of the Federal Rules of Evidence.” (p.62)

Our case ultimately settled, and I breathed a deep sigh of relief, but not before spending several near-sleepless nights worrying how I was going to overcome the challenges of sufficiently understanding the technology to deal with both the plaintiff’s and defense liability experts. It was a learning experience in several ways. I learned to quickly recognize when I’m having difficulty grasping the complex technical concepts necessary to effectively defend (or build) a case. I learned that, regardless of budget constraints, it will not suffice to rely on testifying experts who, though knowledgeable in the subject matter, cannot effectively teach it to a complete novice. I learned that selection of experts is not a discussion to put off having with a client until the time for expert retention, but should be addressed at the outset, to ensure the client has an opportunity to think about how an appropriate, qualified expert can be identified and compensated, even with severe budget constraints.