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Expert Witness Strategies for Surviving Cross-Examinations

February 7, 2024
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By Noah Bolmer

Our experts reveal their strategies for success on the stand, including preparation best practices and gambits against some of the common tactics used by attorneys to unsettle expert witnesses during cross-examinations. 

Reread the Case Documents 

Being ready for cross-examination starts with reading the relevant documents, and mentally preparing. Professor David Rockstraw recommends:   

There is no substitute for spending as much time as it takes to become familiar with the document set to understand how both sides approach the case. It will help you know how to answer the questions they will ask you. Your cross-examination can be contentious, and as an expert, you want to be calm and collected and not engage the opposing expert in any emotional interchange.  

In addition to your own documents, familiarizing yourself with the opposing expert reports is a potent preparation tactic for cross. Professor Robert Romano notes, “You have to read all of the expert reports, understand where they are going and where they came to their conclusions [. . .] I think staying on top of what the other experts’ reports are, and then doing a deeper dive into how they came to their conclusions helps you.” 

Confirm the Venue  

If your expertise is affected by what law the case will operate under, make sure to clarify venue with your engaging attorney. Opposing counsel may otherwise surprise you. Dr. Russell Froman recounts: 

It took a lot of preparation for me to learn [. . .] the nexus between the state law and federal rules and regulations that I was serving as an expert witness. [The opposing] counsel went directly to that and focused on the state law. If I had not done [my research], it would not only have been embarrassing, but it would have been bad for the case [. . .] [D]o your homework on the states in which your case is sitting because it makes a difference. 

The Friendly Opposition Tactic  

A friendly demeanor, and conversational tone can potentially tamp down the expert’s vigilance. Expert John Lauhoff cautions against friendly opposition:   

You don’t know what type of attorney you’re going to be up against, unless you ask the attorney that you’re working for [. . .] Most of the time, they’re decent people, and they’ll act like your friend. But what you’ve got to understand is they’re really not your friend [. . .] They feel that the more friendly that they are to you, the more relaxed you’re going to be, which is true [. . .] but the easier it’ll be to get you to say what they want. What you’ve got to remember is that you know more than they do. You are the expert there. They’re trying again to get information from you. The best thing to do is just to take a deep breath, calm down, and don’t fall into their trap.  

Seeing through this tactic can potentially shake the opposition. Dr. Jill Cramer stays calm when this occurs:  

Some [opposing counsel] will try to lull the expert into a sense of “I am just a nice person. I am on your side and just follow along, Doctor. wouldn’t you agree with me?” [to which I respond] “Never. No, I will never agree with you.” Some of them get angry, and when they do, [. . .] I go into my quiet space and smile [. . .] My opinion should not change based on how the questions are being asked. I try to be as solid in what my thoughts are, so the discussion does not get derailed by a super sweet or snarky cross-examiner[.]  

Refer to the Expert Report  

The expert report is always a safe, vetted repository to reference during cross, as expert Robert Handfield notes, “You need to stick to the details. Your safe spot is always your report. If you have any doubts, go back to it.” He continues, “The attorneys have combed over it. Anything in there is safe [. . .] Where you get into trouble is when you go outside those boundaries.   

Referencing your report is particularly relevant in larger, more complex cases. Dr. W. Richard Laton remarks, “You do not have to memorize things. If you need a second to look something up, do it, [ . . .] It is just too much, especially in big cases”.  

Oppositional Research 

Expert witnesses should assume that the opposition knows everything that is publicly available, including biographies and publications. Dr. Chuck Easttom recounts an experience which demonstrates the lengths to which the opposition may go to impeach experts:  

Much depends on the nature of the case. For example, patent cases involve a lot of money at stake, and they will almost always do oppositional research. They are willing to try to undermine you to the point that sometimes they take ridiculous positions. Two years ago, in a deposition, the opposing attorney tried to suggest that because I have so many different degrees, they must not be legitimate. [. . .] I think he was trying to see if it would upset me, make me angry, and [get] a reaction. I looked at him and said, “Well, the universities in question thought they were legitimate.” 

Cross-examination can be an endurance test, and opposing counsel will use this to their advantage. Dr. Laura Miele mentions that oppositional research may be used simply to wear down experts, stating, “[T]hey are trying to mentally exhaust you by going through your background, and it is sometimes grueling [. . .] If they know you have sound opinions, and they cannot fight them, they are going to use strategies to try to bring it to the summary judgment or bring it to the judge and say, ‘This expert does not have this qualification or that qualification.’” 

Leading Questions  

Often, attorneys will attempt to lead expert witnesses with seemingly innocuous questions. Answer what is asked but clarify if necessary. Expert Bill Gervasi maintains control of the narrative by insisting on his own definitions:  

They will ask a leading question using the terminology they want, and if you answer yes or no, which is what they think you are supposed to answer, then they use that. Then, they will twist the meaning later. [. . .] [M]y strategy was to take control of the terminology and the game plan. If they ask a question in wording I would not use, then my canned response is, “What do you mean by this?” Then, I define their terms, and my answer knocks them off their feet, every time. 

Another leading tactic involves re-asking the same question in different ways. Expert Edward Yee recounts, “What I remember being very frustrating was that the opposing counsel would repeatedly try to rephrase the same question in about fifty different ways. I kept coming up with the same answer. I understand what you are trying to do and where you are trying to get to, but it does not change the outcome.” 

Noting that your expert opinion is based on the current facts is a handy escape route from leading questions. According to expert Terry Stroud, “Never put something in the definitive that does not leave you a way out. Again, let me repeat that. If the facts change, then your opinion changes, or if you get new information say, ‘My opinion may or may not change.’” 

Get ready for cross-examination with a re-read of the case documents, a hefty dose of vigilance, a copy of your expert report for reference, and a review of common attorney tactics. Understanding these ploys keeps you a step ahead of the opposition, ensuring a productive engagement.  

If you are interested in being considered for expert witness work, consider signing up with Round Table Group. For nearly 30 years, we have helped litigators locate, evaluate, and employ the best and most qualified expert witnesses. Contact us at 202-908-4500 for more information or sign up now! 

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