Cross Examination Preparation: Finding Your Voice in the Courtroom
As an expert witness, it is essential to prepare for cross-examination. This is a critical stage of a trial, and a successful cross-examination can often mean the difference between verdict outcomes. The cross-examination process is meant to test the credibility of a witness and to establish a narrative for the jury. The opposing attorney’s questions frequently aim to bolster their own side by uncovering potential weaknesses in an expert’s testimony, undermining the expert’s trustworthiness, challenging the opposing side’s case, highlighting the inconsistencies or contradictions, etc.
Cross examination can be stressful for experts and cause them to inadvertently slip up, so many legal teams will spend significant time prepping an expert. Some tools they may use include exploring potential areas of questioning, conducting a mock cross examination or focusing on assisting an expert in maintaining the tone and composure required so they may be confident and articulate even as they may feel like they are under attack.
Discuss Testimony & Identify Question Areas
The most crucial step in preparing for a cross examination is to anticipate the types of questions that may arise. An expert witness should have thorough knowledge of their field but also know the case’s specifics. By researching the events in detail, an expert witness can more effectively anticipate how their testimony is likely to be questioned.
Beyond research, a thorough discussion amongst the expert and legal team regarding the testimony and potential questions is necessary. By discussing, an expert witness can gain a better understanding of their role, the expected line of questioning and the relevance of their testimony. This can help ensure they remain calm and composed when answering questions, enabling them to provide clear, concise, and well-informed answers.
Having a thorough discussion with the legal team also provides an opportunity to cover any areas that may be contentious. This allows the expert witness to be prepared for any challenges they may face and help them anticipate any issues they may need to address in their testimony. Discussing question areas with the legal team beforehand can be beneficial in helping the expert witness to understand their limitations. This is important as it can help to ensure that their testimony is honest and accurate. Furthermore, it can help to prevent the witness from being put in a difficult position if asked a question that falls outside of their knowledge or expertise.
Hold a Mock Cross
When a trial is looming, expert witnesses must be prepared to stand before a jury and provide convincing testimony. To ensure that each witness is ready for the rigors of cross-examination, a mock cross-examination should be conducted. Mock cross-examinations provide a unique opportunity for expert witnesses to anticipate and respond to the challenges that may arise during the actual trial.
Despite the benefits of a mock cross, some legal teams do not prioritize this process. Cybersecurity expert and founder of Secure Anchor, Dr. Eric Cole, explains, “A lot of times, I must ask and be very persistent in preparing for the cross. I’ll always push back and say, ‘Hey, can we please have another attorney do a mock cross and just make sure I’m ready and just make sure I’m consistent?’”
By engaging in trial simulations and practicing their responses, witnesses can gain a greater understanding of the questions they will face and the best way to address them. The exercise helps witnesses to become comfortable with the court process and to develop a better rapport with the jury. This can also be a valuable tool for attorneys in identifying any potential issues or areas of weakness in the witness’ testimony. By testing the witness’ knowledge and responses to the questions before the trial, attorneys can acquire a stronger sense of the witness’ credibility and the potential impact they may have on the case.
Finally, a mock cross-examination can help ensure that all parties are on the same page when it comes to the witness’s testimony. This can help minimize any surprises or discrepancies that may arise during the actual trial. When discussing the benefits of a mock cross-examination for experts, Dr. Cole continues, “I find that the mock cross is a lot more about me being able to keep the same tone, keep the same expressions, the same answers, and the same body language as opposed to what they really ask in the mock. I joke that I want somebody to be aggressive and yell at me. I just want to stay calm, cool and collected. To me, that’s more the practice of delivery than what you say.”
Remain Composed
Cross-examinations can be an intimidating and stressful experience. As an expert witness, one must remain calm and collected, no matter how aggressive the questioning may become. To do so, an expert witness must remember to keep composed and professional. This is to ensure that they accurately present their evidence, making their testimony as accurate and unimpeachable as possible.
Expert witness and Associate Professor of Psychology at American University, Dr. Nathaniel Herr, elaborates:
If [the expert is] trying to convince other experts, a whole host of facts and evidence is likely going to be the biggest factor there. When discussing with an audience who may not be an expert in that area, who could be intelligent but in a completely different domain, many times other factors play a role. How someone carries themselves, so they look like an expert and act like an expert, but they seem over-emotional or knocked off balance by a cross-examination. Those types of things will affect the perception of the truth or falsehood of their statements.
It is important for an expert witness to retain a level head to avoid tainting testimony with emotion or bias. Cross-examinations can be tricky, and the questions asked can be difficult to answer. Experts must remain focused and not be swayed by the questioning. They must remain firm in their answer, even if it is uncomfortable to do so. Answering questions with confidence, presenting facts and evidence clearly, and refraining from emotional outbursts are all essential to maintaining credibility during a cross examination.
Understand the Opposing Strategy
There are a few powerful ways for an expert witness to gain a better understanding of the other side’s strategy and be better equipped to address any points made by the opposing side during their cross-examination. Experts should start by reviewing the other side’s pleadings, motions, and briefs. They can listen to the other side’s opening and closing statements during the trial as well as any direct and cross-examination of their own and the other side’s witnesses. They should pay attention to the other side’s expert’s testimony and make note of any points that the other side is trying to make.
An expert witness can familiarize themselves with the opposing side’s strategy through a process of interrogation and analysis. Through a combination of research, scrutiny, and observation, they can gain a comprehensive understanding of the opposition’s evidence, arguments, and potential tactics. The expert witness must be thorough and methodical in their approach, utilizing their expertise to dissect the case, parsing the facts and discerning the potential strategies of the opposing side. By taking a nuanced approach, the expert witness can gain a greater insight into the strategies of the opposition and anticipate their moves.
Familiarizing oneself with the expectations and processes associated with cross-examination is essential for every expert witness. There is a myriad of ways to achieve this, and those three tips are a suitable place to start. Understanding the legal process, the type of court, and all relevant laws pertaining to the case is also critical, as these elements will provide insight into the questions that may be asked. The goal of cross-examination preparation is for the witness to hone their skills of persuasion and ensure that their testimony is presented in a lucid and persuasive manner. This means not only being prepared to answer questions posed by the opposing counsel but to also articulate their knowledge and expertise clearly.
For more than 27 years, Round Table Group has helped litigators locate, evaluate, and employ the best and most qualified expert witnesses. Round Table Group is a great complement to any litigator’s quest for an expert witness and our search is always free of charge. Contact us at 202-908-4500 for more information or start your expert search now.