Cross Examination on Industry Standards
We win cases with exceptional cross examination. The reason why cross examination is so powerful is that this is the point in our trial when hostile witnesses can testify to our positive facts. When our own witnesses testify, they do so from a point of bias, and the jurors see this. When hostile witnesses testify to these same exact facts then the validity of that testimony is no longer in question. This is because hostile witnesses do not possess the same bias as our own witnesses do. Thus when we can get positive facts out of hostile witnesses we always prefer to do this as opposed to obtaining those same facts through our own biased witnesses.
When we get a hostile witness on the stand we need to first probe the witness as to the validity of any rules or standards applicable to defendant’s actions in the context of our case. If we have done a good job in deposition we will have already locked defendant into agreement with these rules or standards. Thus if the witness waivers at this point you can hit him with an impeachment. To this end begin your cross examination with some soft ball questions. Have your hostile witness agree to those rules/standards in which you are most sure he or she will agree to. These are rules which he or she has already agreed to and/or rules to which he or she will look ridiculous in denying. Once you secure agreement to an applicable rule or standard which applies to the defendant then move on to the next rule. On your cross examination outline be sure to indicate the source of any impeachment evidence in case you need to impeach your witness. The source of your impeachment will either be a deposition transcript or an authoritative publication. If you don’t have a contradictory statement from that exact witness regarding the applicable rule then ask the witness if he is aware that other defense witnesses have already agreed to these rules or standards.
As with all good cross examination, use polarizing techniques to hurt the witness on the stand when the witness takes a non-conforming position. This sometimes will be even better than an impeachment by way of deposition transcript. In other words, if your witness says that he doesn’t agree with your rule then make him acknowledge that he or she agrees with the opposite of your rule. The point here is to force the witness to adopt your rule in front of the jurors or otherwise take a polar opposite position on the issue. As Rick Friedman says, don’t let the witness hide in an ambiguous middle ground. Require him to make a choice between two polarized views. After you punish a hostile witness a couple times by either polarizing his position or impeaching him with inconsistent statements from his or her deposition he or she will typically fall in line with your line of questioning so as to avoid further embarrassment in front of the jurors.
After your hostile witnesses has agreed to your rules or standards you can then move on to the next step in your cross examination. That next step is to ask this witness if the defendant’s actions as they occurred were in conformity with the rules or standards applicable to his or her conduct. When you first ask the witness about the rules and then talk about the defendants conduct it will become apparent that the Defendant’s conduct was not in conformity with those rules. Finally, directly ask the witness if the defendant’s conduct was consistent with the applicable rules. It is not necessary that the witness admit specifically that the defendant didn’t abide by the rules or standards. By first walking the witness through the rules and then through the defendant’s actions the answer to your question will be apparent to the jurors. When you can, it is preferable to allow the jurors to reach conclusions on their own as opposed to shoving your own conclusion down the juror’s throats. In this way the jurors become much more solidified in their conclusions.
When we deal with expert witnesses who decide to be dishonest with us we need to employ special measures. To impeach these experts you will want to use authoritative treatises which contradict the expert’s testimony. Thus, when you are conducting your direct examination be sure to have your own expert first establish whatever impeachment material you may need later on cross as “reliable authority”. Then when you cross your opposing expert simply ask this expert if he or she agrees that the book provides helpful knowledge in the industry. If the expert challenges this position, cross examine him on the authority of this book. For example, ask him if he is familiar with the prestigious schools the authors teach at. Ask the witness if he or she understands the significance of the text being published numerous times. In this way you can demonstrate the publication has been around for a long time and was written by distinguished authors. The idea here is to build up the credibility of the literature while reducing the expert witnesses’ credibility simultaneously. After you have done this you can then put forward any rule or standard within the text which you wish to present to the jury. You can put the written standard up on a poster board for the jurors to see. If the expert challenges the statement simply inquire as to what textual authority the expert brought with him which contradicts your books statement.
Ideally you will have set yourself up well for this line of questioning well in advance of trial. To do this you should ask the opposing expert either by way of interrogatory and/or deposition in advance of trial what authorities he or she rely upon. You do this for two reasons. First, this is a good way to find strong rules which you can use in your case. These rules become increasingly strong after the defense acknowledges relying on these tests in interrogatory or deposition. The second reason to ask the expert this question is so that you can block the expert from brining in “reliable authority” at trial which may contradict your own authority. Thus ask by way of interrogatory what “reliable authority” the opposing expert intends to rely upon at trial. The defense will then typically deny the existence of reliable authority. Once you have this denial established in discovery you are set up to prevent the defense expert from bringing in their own authorities at the last minute.
Then in closing you can remind the jurors that it was your side that brought in the authoritative books. Remind the jurors that the defense could only support their position with their hired gun expert. The defense failed to bring any publications or authority to court which would convince the jurors as to what rules should apply to defendant’s actions. Only the plaintiff brought this information to the jurors. Put the language from your treatise in front of the jurors on poster board. Remember, you are not offering evidence by doing this, you are simply using a visual aid to present information to the jurors.
For a much more thorough understanding of this type of material I refer you to the published works of Rick Friedman and Patrick Malone. Most of the ideas and concepts discussed here come from their genius. Some of Rick Friedman’s best works, in my opinion, are “Rules of the Road” and “Polarizing the Case”.