Injury Trials: Cross Examination

Injury Trials: Cross Examination

     There are some fundamentals of cross examination which will apply in virtually all trials.  For instance, we should never ask a question we don’t know the answer to.  I typically won’t ask a question unless I can impeach a bad answer or otherwise expect that the answer cannot hurt my case no matter how answered.  To do this I find that depositions are of key importance.  If you don’t have a deposition transcript to avail yourself to then look for any writings or other evidence you can use to impeach the witness.  Once you have an impeachment tool you can control your witness.  Then use your adverse witness to tell the story of your case for you.  The benefit of this is that when adverse witnesses illicit your case then these facts will be accepted as fact by the jurors, without doubt as the witness is if anything biased against your case.  Thus the testimony takes on a certain credibility.  This is better than eliciting the same facts from your own favorable witnesses’ mouths, as their credibility is questionable given their stake in the outcome of the case.  Thus always look to illicit your necessary facts through cross examination when possible.  To add to this of course you should always keep your questions tight.  Seek to illicit one fact per question.  As soon as you attempt to illicit more than one fact per question you will lose control of your witness.  When you lose control of your witness you lose credibility and you lose your case. 

     Within the context of the plaintiff’s personal injury case there are some exceptional rules which apply.  The rules I write about here come from my readings of David Ball’s literature.  Some of his ideas are rather brilliant.  One idea which trial consultant David Ball talks about is showing on cross examination how the opposing expert has violated certain steps or procedures in arriving at his or her expert opinion.  To do this you are going to want to put your own expert up on direct first.  You can use your own expert to establish the steps necessary for analyzing cases such as these.  Your own expert can then explain what each step is and why each step is so important.  Have your expert talk about what effect would be had if he or she omitted one of the steps in this procedure.   Of course, you are going to need an expert who can speak clearly to your jurors, preferably in an educational manner.  In this way you are using your expert to teach the jurors the necessary steps. 

     After your own expert has taught the jurors the necessary steps for completing the analysis you can now begin your cross examination of the opposing expert.  In this way you can force the opposing expert to take a side consistent with your own expert or otherwise force this expert to take an adverse position.  Ideally you will conduct a deposition of this adverse expert well in advance of trial.  At this deposition is when you really want to nail him down on the steps which are required in this type of analysis.  Then go on to inquire as to the steps he or she took in this particular case.  Use your deposition transcript as a tool for impeachment on cross examination.  In deposition nail down each and every step that the opposing expert believes is important and necessary in conducting this analysis.  Then on any point which he disagrees with your own expert nail his testimony down as to why he agrees or disagrees with your expert. 

     To the end that we wish to use hostile witnesses to tell the story of our case we use the defense liability expert to talk about our harms and losses.  The defense will put this expert on the stand for the purpose of explaining why the defendant is not liable.  Your instinct may be to begin impeaching this expert and begin tearing apart his reasoning and science behind his conclusion of no liability.  Don’t do this just yet.  Start off by having this defense expert explain the harms and losses experienced by individuals who suffer from the injury in which your client suffers from.  In this way you continue to put harms and losses in front of the jury.  Remember, to the jurors, the case is about what they hear about most.  So when the defense wants to use its expert to talk about lack of liability make this same expert talk about harms and losses.  Your cross examination on this material can overcome a relevance objection as you are ostensibly testing the experts knowledge and expertise about the given condition as the expert shouldn’t be able to opine on the subject without a thorough understanding of the subject material.  After you use this defense expert to speak on the severe harms and losses then you can afterwards go on to attack his conclusions on liability.  Always play nice first and attack last.   

     When you use an adverse witness in this way, in a way that tells the story of your case, be sure to not appear hostile towards this witness.  If you can present the witness as though they are friendly and favorable to your case then you are doing an outstanding job.     Remember that you as the plaintiff’s attorney will have to work harder to gain the trust of the jurors.  What you say is suspect to jurors.  What a witness says on cross examination can be suspect as well if the jurors perceive you to be manipulating or coercing the witness’s testimony.  A truly capable plaintiff’s trial lawyer can control a hostile witness without allowing the jurors to perceive this control.  This is a true art.  David Ball suggests that in closing you tell the jurors that you didn’t need to bring any of your own witnesses to trial.  That in fact the defense witnesses told the entire story for you.  You can then walk the jurors through the story of your case as explained entirely by defense witnesses.  This is a powerful demonstration. 

     You may come across defense expert witnesses that will try to tell the jurors how long your client can expect to live.  Of course they will try to show that you client will live for the shortest period possible, thereby reducing economic damages.  The first thing you need to make sure to make clear to your jurors is that there is no way to predict a person’s life expectancy.  Perhaps if an individual is on their death bead doctors can predict with some level of certainty how long the patient has to live, but medical science has not evolved to a point where we can determine the length of a person’s remaining life otherwise.  Get this fact nailed down in your opposing expert’s deposition.  Then hammer the defense expert with impeachments if he tries to say anything different in trial.  A good weapon to use on cross examination is to ask the defense expert if he will agree to pay for your client’s care for each year that your client does happen to exceed the defense expert’s prediction.  You can ask the same witness if he thinks it appropriate for your client to be forced to make the gamble.  Ask him if between the defendant and your client who should be forced to take the gamble.  Even if an objection is sustained you will have made your point on the matter. 

     Another Defense position you may come across which you will need to attack on cross is that of the malingering defense.  Sometimes it can be a blessing if the defense tries this defense.  You can use it against the defense by infuriating the jurors with the defendant’s lack of integrity and lack of responsibility.  Read Rick Friedman’s Polarizing the Case for a detailed explanation of how this is done.  When you conduct your deposition of the defense expert, inquire thoroughly about all the science behind proving that someone is faking or exaggerating.  There is none.  Ask how the expert can say to a reasonable degree of medical certainty that someone is faking or exaggerating.  Then impeach the defense expert using his deposition statements.  David Ball suggests researching how the defense expert testified at prior trials.  Find out how often the defense expert followed up with his predictions.  If he tells you in deposition that he really never has followed up with any of his predictions then you can show that he really hasn’t gathered all the necessary information to determine how accurate his predictions have been. 

     These are just a few tips on cross examination.  Most of these ideas come from legendary trial consultant David Ball.  For a more thorough understanding of the material I refer you to any of his many publications.  In addition, the late Irving Younger, has written extensively on cross examination and is considered to be one of, if not, the best advocacy teacher of his time.