CHAPTER 9 "EXPERT WITNESSES"
I. THE PURPOSE OF EXPERT TESTIMONY
Most witnesses are called to the stand because they have seen, heard, or done something relevant to the issues in the case. Such persons are often referred to as “ordinary” witnesses or “lay” witnesses. The testimony of these witnesses is generally limited to those things they have directly observed or experienced, as well as reasonable conclusions that can be drawn from those sensory perceptions. In short, lay witnesses must testify from personal knowledge, and they may not offer opinions unless the proper foundation can be laid
xpert witnesses constitute an entirely different category. An expert witness is not limited to personal knowledge and may base her testimony on information that was gathered solely for the purpose of testifying at trial. Moreover, an expert witness may offer an opinion that goes well beyond her direct sensory impressions. An expert may opine on the cause or consequences of occurrences, interpret the actions of other persons, draw conclusions on the basis of circumstances, comment on the likelihood of events, and she may even state her beliefs regarding such issues as fault, damage, negligence, avoidability and the like.
Experts can be used in commercial cases to interpret complex financial data, in personal injury cases to explain the nature of injuries, or in criminal cases to translate underworld slang into everyday language. Properly qualified, an expert can be asked to peer into the past, as when a forensic anthropologist determines the cause of death. Other experts may predict the future, as when an economist projects the expected life earnings of the deceased in a wrongful death case.
II. THE STANDARDS FOR EXPERT TESTIMONY
The Federal Rules of Evidence set forth the following standards to which expert testimony must conform:
A. Areas of Expertise
Expert opinions are admissible where the expert’s scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or a fact in issue. Thus, there are two threshold questions: Does the witness possess sufficient scientific, technical, or other specialized knowledge? Will that knowledge be helpful to the trier of fact?
As a student preparing for a mock trial, this step is usually completed for you since experts are identified (or obvious) in your case file and there is typically no question that the witness is qualified to offer testimony in a given area of expertise.
B. Scope of Opinion
Generally, experts can testify on any subject so long as it is within their area of expertise. Expert testimony may even be about an ultimate issue to be decided by the trier of fact. The only exception is that an expert in a criminal case may not state an opinion as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or a defense thereto. For example, in a murder case where temporary insanity is raised as a defense, an expert may not testify that the defendant was indeed temporarily insane at the time of the crime.
C. Bases for Opinions
An expert may testify to her opinion with or without explaining the facts or data on which the opinion is based. This allows the witness to state her opinion at the beginning of the examination, followed by explanation, rather than having to set forth all of the data at the outset before giving her opinion.
Additionally, an expert may testify on the basis of facts made known to her at or before the trial. Moreover, those facts or data need not be admissible in evidence so long as they are of a type “reasonably relied upon” by experts in the particular field.
III. DIRECT EXAMINATION OF EXPERTS
A. Planning Expert Testimony
In addition to following the techniques discussed in Chapter 3 (“Communication Techniques”) and Chapter 4 (“Direct Examination”), the rules below will help you achieve a successful direct examination of an expert witness.
1. Determine the expert’s theory
Just as a lawyer cannot succeed without developing a comprehensive theory of the case, neither will an expert’s testimony be effective without a viable, articulated theory. An expert’s theory is an overview or summary of her entire opinion. The theory must not only state a conclusion, but must also explain, in common-sense terms, why the expert is correct. Why did she settle upon a certain methodology? Why did she review particular data? Why is her approach reliable? Why is the opposing expert wrong? In other words, the expert witness must present a coherent narrative that provides the trier of fact with reasons for accepting the expert’s point of view.
The need for a theory is especially true in mock trial cases involving ”dueling experts,” where each side has its own expert witness and the experts’ opinions vary. In these cases, the trier of fact is faced with the task of sorting through the opinion testimony and choosing which witness to believe. It is likely that both experts will be amply qualified, and it is unlikely that either will make a glaring error in her analysis or testimony. The trier of fact will therefore be inclined to credit the expert whose theory is most believable.
Consider the following case. The plaintiff operated a statewide chain of drive-in restaurants but was put out of business by the defendant’s allegedly unfair competition. Assume that in the first trial the judge found that the defendant did participate in unfair competition and your mock trial is to be held to determine the amount of damages the defendant must pay to the plaintiff to compensate for the illegal commercial practice. Each side retained an expert witness who generated a damage model.
Not surprisingly, the plaintiff’s expert, Dr. Abha Gupta, found that the restaurants would have earned millions of dollars over the following five years had they not been driven out of business. Conversely, the defendant’s expert, Dr. Thomas Harris, held the view that the stores would have been marginally profitable, with total profits amounting to no more than a few hundred thousand dollars. Each witness backed up their opinions without computer printouts, charts, and graphs. Both used reliable data, and all of their figures were rigorously accurate.
The rival experts reached different conclusions because they followed different routes. Dr. Gupta calculated lost profits as a function of population growth and driving habits, concluding that the revenues at drive-in restaurants would rise in proportion to expected increases in population and miles driven. Dr. Harris, on the other hand, estimated damages on a “profit-per-store” basis, taking the plaintiff’s average profit for the existing restaurants and multiplying them by the number of outlets that the plaintiff planned to build.
Faced with this discrepancy, the task for counsel is to present the expert testimony in its most persuasive form. Whichever side you represent, it should be obvious that a simple recitation of your expert’s methods will be unlikely to carry the day. After all, we have assumed that both experts were meticulously careful within the confines of their respective approaches. For the same reason, the trier of fact will probably be unimpressed by an expert who reviews in detail all of her calculations. Numbers are boring in any event, and both experts are sure to have been accurate in their arithmetic.
Instead, the key to this case is to persuade the trier of fact that your expert chose the correct approach. Dr. Gupta must be asked to explain why lost profits can be determined on the basis of population growth; Dr. Harris has to support his reliance on profits per store. The prevailing expert will not be the one with the greatest mastery of the details, but rather the one who most successfully conveys the preferability of their theory. The most painstakingly prepared projection of population growth cannot succeed in persuading a judge or jury if they ultimately decide that only an analysis of profits per store can give them an accurate assessment of damages.
The importance of theory extends to all types of expert testimony. It is necessary, but not sufficient, for your expert to be thorough, exacting, highly regarded, incisive, honorable, and well prepared. Regardless, an expert’s testimony will suffer if the witness cannot support her opinion with common-sense reasons.
2. Encourage the use of plain language
Virtually every field of expertise creates its own technical and shorthand terms. The affidavits if any expert witnesses in your case file may accordingly include arcane and jargon-laden speech. While it is okay for your expert to repeat these terms while testifying, it is advisable to have them define and explain what each term means in plain language. For example:
QUESTION: Dr. Gettleman, do you have an opinion as to why the pressure
plate failed?
ANSWER: Yes. My tests indicate that the fastening bolts were overtorqued.
QUESTION: What do you mean when you say overtorqued?
ANSWER: I mean that the bolts were turned too far when they were tightened.
Finally, be sure you do not adopt the expert’s word choices. Many students, perhaps out of a desire to appear knowledgeable, tend to examine expert witnesses using the expert’s own jargon. Such examinations can take on the characteristics of a private, and completely inaccessible, conversation between the lawyer and the witness. Consider the following:
QUESTION: Dr. Winter, what injuries did you observe?
ANSWER: I observed multiple contusions on the anterior upper extremities.
QUESTION: Was there anything remarkable about the contusions?
ANSWER: Yes, They varied in color, which indicated that they had been
inflicted at different times.
QUESTION: Did the anterior location of the contusions indicate anything further
to you?
ANSWER: Yes. Their anterior locations suggested that they had been
inflicted from a superior position.
The lawyer and doctor are talking about bruises. The witness chose to use the term “contusions” because it is medically precise, and the lawyer’s adoption of the term encouraged the doctor to continue using it. While the lawyer may have succeeded in demonstrating his medical sophistication, he may have done so at the cost of the fact-finder’s comprehension.
3. Help to avoid narratives
Long narrativesare hard to follow and hard to digest. Anyone who ever sat through a long lecture or speech should understand how difficult it is to pay attention to a speaker for an extended period of time. This is particularly true of expert testimony, which often concentrates on complex or intricate details. Allowing an expert to testify in a long, unbroken stretch invites inattention.
Counsel can avoid narrative answers and reinitiate primacy by punctuating the expert’s testimony at logical breaking points, for example:
QUESTION: Dr. Harris, what is the significance of location in projecting profits
for a chain of drive-in restaurants?
ANSWER: Location is probably the single most important factor when it
comes to profitability in any retail business. Even if the overall
trend in an industry is upward, a poorly located business is unlikely
to benefit. This is especially true of the restaurant business.
QUESTION: Please explain.
ANSWER: The restaurant business is intensely local in nature. There are very
few restaurants that attract people from great distances. Most
people eat near their homes, their places of work, or their
shopping destinations. So, a restaurant in an undesirable
neighborhood or in a declining business district simply will not
draw customers.
QUESTION: Why is that?
ANSWER: Many restaurants depend heavily on luncheon trade. People on
their lunch break usually do not have more than an hour, so a
restaurant will not be able to draw their business unless it is
located near a fairly large number of employers. No matter how
well the economy is doing, a restaurant will not do well at
lunchtime if it is located in an area that happens to have
experienced a downturn.
Note that the lawyer in this example did not cut off the witness and did not limit the expert to unnaturally short answers. The lawyer did, however, use strategically interjected questions to break up the narrative, thereby continually reemphasizing the expert’s testimony.
4. Encourage the use of examples and analogies
Many complex ideas can be made understandable with examples and analogies. Expert witnesses should be encouraged to clarify their testimony through the use of such imagery. Consider the following use of an example to flesh out a relatively abstract concept:
QUESTION: Dr. Harris, please give us an example of how a restaurant chain
might do poorly, even in a state with an expanding population
and increasing vehicle miles.
ANSWER: Certainly. Many urban areas have experienced population growth
that is basically limited to the suburbs. A restaurant chain that was
concentrated in a central city would show almost no increased
profitability as a result of that growth. In fact, its profits might well
decline because of the population shift. That is why location is
such an important factor.
An analogy could serve the same purpose:
QUESTION: Dr. Harris, could you please explain the importance of location a
little further?
ANSWER: Well, maybe it would help to think about it this way. Imagine a
baseball league with eight teams. If the top two or three pennant
contenders are all located in big cities, they will obviously draw a
lot of fans. On the other hand, a cellar-dwelling team in a small
city would probably play to an empty stadium. So even if the
league’s overall attendance went up, that wouldn’t help to fill the
seats for the last place team. A poor location is a lot like being
in last place.
Be sure not to take the witness by surprise with a request for an example or analogy. The time to consider using these explanatory tools is during preparation, not on the spur of the moment in the midst of direct examination.
5. Prompt the witness to give internal summaries
Because of the potential length and complexity of expert testimony, it is important to highlight significant points through the use of internal summaries. For instance, ask the expert to point out the relevance of the most critical steps in his analysis, or request that he summarize the implications of his findings.
Think of the expert’s testimony as containing a series of steps or elements. At the conclusion of each step the expert should explain how he got there, why it is important, and where he is going next, as in the following example from the testimony of the defendant’s expert in the drive-in case:
QUESTION: Dr. Harris, please summarize your objections to Dr. Gupta’s
methodology.
ANSWER: The problem with Dr. Gupta’s approach is that she failed to
consider several of the most important factors in determining
profitability. Her reliance on population and vehicle miles led
her to dramatically overestimate the restaurant chain’s likely
profitability. Her study was especially deficient because it did
not account for either location or potential competition.
QUESTION: Were you able to conduct a more comprehensive study?
ANSWER: Yes. I conducted a study that included the six most important
factors, all of which were omitted by Dr. Gupta.
….
B. Organizing Expert Testimony
There is a certain logic to the direct examination of most experts. While the particulars and details will vary, there are a limited number of possible patterns for organizing the testimony. The following is a broad outline that can accommodate the specifics of most expert testimony.
1. Introduce the witness and foreshadow the testimony
The first step is to introduce the expert and explain her involvement in the case. Since expert testimony is different from lay testimony, it’s a good idea to clarify its purposes for the fact-finders so that the information that follows will be understood. Ask the witness how she became involved in the case and why she is present in court. Then ask the expert to explain how her opinion fits into the case at the very outset of the examination.
The plaintiff’s damages expert in the example from the preceding section might be introduced as follows:
QUESTION: Please state your name.
ANSWER: Dr. Abha Gupta.
QUESTION: Dr. Gupta, have you been retained to reach an expert opinion in
this case?
ANSWER: Yes.
QUESTION: Did you reach an opinion concerning the plaintiff’s lost profits?
ANSWER: Yes, I have calculated the amount of money that the plaintiff would
have earned.
QUESTION: We’ll talk about your opinion in detail in a few minutes, but right
now we have to talk about your qualifications to testify as an
expert in this case.
2. Elicit the expert’s qualifications
To testify as an expert, a witness must be qualified by reason of knowledge, skill, experience, training or education. This is a threshold question for the judge, who must determine whether the witness is qualified before permitting her to give opinion testimony. The qualification of the witness, then, is a necessary predicate for all of the testimony to follow. Care must be taken to qualify the expert in a manner that is both technically adequate and persuasive.
Although it is generally understood in mock trials that an expert witness whose affidavit is included in the case file is qualified to testify to her opinions, you should still demonstrate your understanding of the qualification process prior to eliciting those opinions.
a. Fulfill the technical requirements
The technical requirements for qualifying an expert witness are straightforward. It is usually adequate to show that the witness possesses some specialized skill or knowledge, acquired through appropriate experience or education, and that the witness is able to apply tat skill or knowledge in a manner relevant to the issues in the case. Thus, the minimal qualifications for the financial expert in the restaurant case could be established as follows:
QUESTION: Dr. Gupta, could you please tell the jury about your education?
ANSWER: Certainly. I have an undergraduate degree in business from the
University of Michigan and a Ph.D.in economics from
Northwestern University.
QUESTION: What work have you done since earning your doctorate?
ANSWER: I was a professor in the economics department at Washington
University for six years. Then I left to start my own consulting
firm, which is called Gupta & Associates.
QUESTION: Do you have a specialty within the field of economics?
ANSWER: Yes, my specialty is business valuation.
QUESTION: Has business valuation been your specialty both at Washington
University and at Gupta & Associates?
ANSWER: Yes.
QUESTION: What is the field of business valuation?
ANSWER: It is the study of all of the components that contribute to the fair
value of a business, including anticipated future profits, assets,
receivables, good will and investment potential.
The above examination confirms the expert’s qualifications by reason of both education and experience. Dr. Gupta should now be able to give an opinion as to the projected profits for the restaurant chain.
The establishment of basic qualifications, however, should not be counsel’s entire objective. It is equally if not more important to go on to qualify the witness as persuasively as possible.
b. Be persuasive when qualifying
The technical qualification of an expert merely allows the witness to testify in the form of an opinion. Counsel’s ultimate goal is to ensure that the opinion is accepted by the trier of fact. Persuasive qualification is particularly important in cases involving competing experts, since their relative qualifications may be one basis on which the fact-finder will decide which expert to believe.
It is a mistake, however, to think that more qualifications are necessarily more persuasive. An endless repetition of degrees, publications, awards, and appointments may easily overload any judge or juror’s ability, not to mention desire, to pay careful attention to the witness.
It is usually more persuasive to concentrate on a witness’s specific expertise, as opposed to her more generic or remote qualifications. Every economist, for example, is likely to hold a doctorate, so there is comparatively little advantage to be gained by spending valuable time expounding your expert’s academic degrees. Similarly, there is usually scant reason to go into matters such as the subject of the witness’s doctoral thesis, unless it bears directly on some issue in the case.
Experience is often more impressive than academic background. So, for example, a medical expert may be more impressive if she has actually practiced in the applicable specialty, as opposed to possessing knowledge that is strictly theoretical. When presenting such a witness, then, counsel should typically dwell on her experience, pointing out details such as the number of procedures she has performed, the hospitals were she is on staff, and the numbers of oter physicians who have consulted her.
Finally, it is frequently effective to emphasize areas of qualification where you know the opposing expert to be lacking. If your expert has a superior academic background, use the direct examination to point out why academic training is important. If your expert holds a certification that the opposing expert lacks, have her explain how difficult it is to become certified.
c. Tender the witness (if allowed)
Depending on your mock trial rules, the next step will be to tender the witness to the court as an expert in her specified field. The purpose of the tender is to inform the court that qualification has been completed and to give opposing counsel an opportunity either to conduct a voir dire examination of the witness (which we will discuss later in this chapter) or to object to the tender. In the restaurant example above, the financial expert would be tendered as follows:
COUNSEL: Your Honor, we tender Dr. Abha Gupta as an expert witness in the
field of business valuation and the projection of profits.
3. Elicit the expert’s opinion and theory
Following qualification, the next step in the direct examination of an expert witness is to elicit firm statements of opinion and theory,
a. Have the expert state opinions up front
Once the witness has been qualified (and accepted as an expert through a formal tender and ruling, if allowed), she may proceed to express her opinion without additional foundation. In other words, she may state her conclusions without first detailing the nature or extent of her background work or investigation.
Take advantage of this opportunity. Expert testimony tends to be arcane and boring. The intricate details of an expert’s preparation are unlikely to be interesting or even particularly understandable to the fact-finder. They will even be less captivating if they are offered in a void, without any advance notice of where the details are leading or why they are being explained. On the other hand, a clear statement of the expert’s conclusion can provide the context for the balance of the explanatory testimony. For example:
QUESTION: Dr. Gupta, do you have an opinion as to the profits that the plaintiff’s
restaurant chain would have made, if they hadn’t been forced out
of business?
ANSWER: Yes, I do.
QUESTION: What is your opinion?
ANSWER: I believe that the restaurant chain would have earned at least $3.2
million over the next five years, if they had been able to stay in
business.
QUESTION: How did you reach that opinion?
ANSWER: I based my calculations on the state’s projected population growth,
combined with the probable demand for fast-food, drive-in
restaurants.
By providing her opinion at the outset, the expert allows the trier of fact to comprehend the significance of the following details, which counsel is then free to inquire about further.
b. Quickly elicit the expert’s theory
Once the expert’s opinion has been stated, immediately provide the underlying theory. The theory should furnish the nexus between the expert’s conclusion and the data used to support the conclusion. In other words, the examination should follow this pattern: (1) here is my opinion; (2) here are the principles that support my opinion; (3) here is what I did to reach my final conclusion.
In the fast-food example, the expert’s theory should explain why population growth and vehicle miles are reliable indicators of projected profits:
QUESTION: Dr. Gupta, why did you base your calculations on the state’s
projected population growth?
ANSWER: The demand for fast food will rise as population grows. This is
particularly true because teenagers and parents of young children
are the largest purchasers of fast food, and they are also two of
the groups that increase most rapidly as population goes up.
QUESTION: Why did you also consider growth in vehicle miles?
ANSWER: Drive-in restaurants are especially sensitive to vehicle miles. As
people drive more they are exposed to more drive-in restaurants,
and they therefore buy more meals.
QUESTION: What did you conclude from these relationships?
ANSWER: I concluded that the profitability of a drive-in restaurant chain will rise
in proportion to a combination of general population growth and
increases in miles driven.
QUESTION: Did you consider only population growth and vehicle miles?
ANSWER: Of course not. I began by determining the chain’s profits under
current conditions, and I used those figures as a base. Then I
projected them forward for five years, using the government’s
statistics for population and driving.
QUESTION: Please tell us now exactly how you did that.
Note how this examination provides the context for the explanation to follow.
4. Elicit the explanation and support for the expert’s opinion
Having stated and supported her theory choice, the expert can now go on to detail the nature of her investigation and calculations. The trier of fact cannot be expected to take the expert at her word, so the validity and accuracy of her data and assumptions must be established.
a. Have the expert explain the data
The expert should be asked how she chose and obtained her data. She should also explain why her information is reliable. In the scenario above, for example, the expert could point out that government statistics on population and vehicle miles, are used to make many crucial decisions such as the configuration of traffic lights, the expansion of highways, and even the construction of schools.
The expert should also be asked to describe any tests or computations that she performed. It is not sufficient for the expert simply to relate the nature of the data. Rather, the expert should go on to explain how and why the data support her conclusions.
The treatment of underlying data is one of the trickiest aspects of expert testimony. Counsel should elicit a sufficiently detailed treatment of the data to persuade the fact-finder of its reliability but stopping well short of the point where their attention span is exhausted.
b. Be clear about what assumptions were made
Many experts rely upon assumptions. The financial expert in the fast-food case, for example, would no doubt assume that the relationship between sales and population growth would continue at historical rates. The expert would also probably assume a certain financial “discount rate” for reducing the dollars in her projection to present value. There is obviously nothing wrong with using appropriate presumptions, but their validity should be explained:
QUESTION: Dr. Gupta, did you make any assumptions in reaching your opinion
that the plaintiff’s restaurant chain would have earned $3.2 million
in profits?
ANSWER: Yes, I assumed that fast-food sales would continue to increase
in proportion to population at the same rate as they had in the past.
QUESTION: Why did you make that assumption?
ANSWER: The restaurant chain was put out of business, so there were no
actual sales to look at. I therefore had to project their most likely
sales, and for that I had to assume a base figure to project forward.
QUESTION: What did you use as your base figure?
ANSWER: I used the average growth for the entire industry.
QUESTION: Why did you use the industry average?
ANSWER: I used the industry average precisely because it is an average
of all of the companies in that particular business. That way I
could be sure that I wasn’t using a figure that was abnormally
high or abnormally low.
It is not necessary to explain or outline every hypothesis used by your expert, but the more important assumptions should be noted and supported.
5. Utilize theory differentiation if your case involves dueling experts
In cases involving dueling experts there will also be competing theories. Properly prepared and presented, each expert will attempt to explain to the trier of fact why her theory ought to be accepted. It can be particularly effective, therefore, to ask your expert to comment on the opposing expert’s work. The technique is called “theory differentiation” because it is most convincing when your expert discusses the shortcomings of the opposition theory.
In the previous few sections we have seen illustrations taken from the testimony of the plaintiff’s financial expert in a case involving lost profits. Now consider this example of theory differentiation, offered by the expert witness for the defendant in the same case, who has already be identified and qualified.
QUESTION: Dr. Harris, have you had an opportunity to review the work done
in this case by Dr. Abha Gupta?
ANSWER: Yes, I have.
QUESTION: Do you agree with Dr. Gupta’s damage projections?
ANSWER: No, I do not.
QUESTION: Why not?
ANSWER: Dr. Gupta based her estimate on a combination of population
growth and mileage assumptions, and this approach cannot
yield a reliable result.
QUESTION: Why is that?
ANSWER: Because it assumes too much. Dr. Gupta’s theory is that
restaurant revenues will inevitably rise with population and
automobile miles. While this might be true for the entire
restaurant industry, there is no reason to think that it would
be true for any particular chain of restaurants. To reach a
dependable result for an individual chain you would have to
consider many other factors.
QUESTION: What factors are those?
ANSWER: At a minimum you would have to consider location, market niche,
product recognition, potential competition, specific demographics,
and general economic climate.
QUESTION: Did Dr. Gupta consider any of those factors?
ANSWER: No, she did not.
QUESTION: Please give us an example of how location could affect the
profit projections.
ANSWER: Certainly. Population always grows unevenly. Even if the overall
population rises in a state or a city, it might stay constant or fall in
certain areas. Therefore, a restaurant chain might not be able to
take advantage of population increases if all of their outlets were
placed in stagnant or declining locations.
The defense expert has deftly exposed the flaws in the plaintiff’s theory. There are two advantages to this use of theory differentiation. First, it enables the expert to concentrate on major issues, as opposed to picking out petty mistakes. Second, it allows the expert to avoid personal attacks. In essence, the above example has Dr. Harris saying: “I have no personal quarrel with Dr. Gupta; she simply chose an inadequate theory.” This “high road” approach will contribute to the dignity and persuasiveness of the witness.
The timing of theory differentiation is important. Generally, it is best to build up your expert’s credibility through his explanation of his opinion before attempting to teardown opposing counsel’s expert and her opinion. Because of the order of trials, however, defense counsel ay sometimes prefer to over the information early in the examination to rebut the plaintiff’sexpert immediately and forcefully.
6. Enable the expert to go out with a bang
An expert’s direct examination should conclude with a powerful restatement of the witness’s most important conclusions.
IV. CROSS EXAMINATION OF EXPERTS
The rules and guidelines for content and organization discussed in Chapter 6 (“Cross Examination”) apply equally to the cross examination of experts. What follows below is a list of techniques that can be used primarily or most effectively with expert witnesses. Each mock trial case file is different and it is likely that only a few of the following techniques will be applicable in any particularly case. Thus, consider all of the following but use only those that clearly apply.
A. Challenge the Witness’s Credentials
An expert witness’s credentials are subject to challenge either on voir dire or during cross examination. Voir dire may be used to object to the legal sufficiency of the expert’s qualifications, while cross examination is the time to attack their weight.
1. Voir dire on credentials
Once the proponent of an expert has concluded the qualification segment of the direct examination, opposing counsel is entitled a voir dire of the witness (unless prohibited by competition rules). A voir dire examination temporarily suspends the direct so that the opponent of the proffered evidence can inquire as to its evidentiary sufficiency. With regard t the qualification of experts, this means that opposing counsel can interrupt the direct examination in order to conduct a mini-cross limited to the issue of the witness’s credentials.
In competitions that require the tender of expert witnesses, voir dire typically proceeds once the witness is proffered to the court:
PROPONENT: Your Honor, we tender Dr. Thomas Harris as an expert on the
subject of lost profits.
COURT: Any objection, counsel?
OPPONENT: Your Honor, we would like the opportunity to conduct a voir dire
examination.
COURT: You may examine the witness on the subject of his qualifications
to testify.
In competitions where tender is not allowed, you must raise an objection at the point where the witness begins to offer an opinion. Do not wait to be invited by the court:
PROPONENT: Dr. Harris, do you have an opinion as to the profits that the
plaintiff would have earned if the restaurant chain had not
been driven out of business?
OPPONENT: Objection. Your Honor, we would like an opportunity for voir dire
of this witness before he is allowed to give opinion testimony.
COURT: You may examine the witness on the subject of his qualifications
to testify.
Note that voir dire is limited to the question of the admissibility of evidence; it is not the time to launch into a wide-ranging attack on the expert’s integrity, methods, data, or bias. Thus, voir dire regarding an expert’s credentials is restricted to the foundation for the witness’s ability to opine on the issues in the case. In other words, is the witness qualified as an expert by knowledge, skill, experience, training, or education? The witness may proceed with his testimony so long as he meets this minimum requirement.
It is frequently an uphill battle to persuade a judge that a proffered witness should not be allowed to testify as an expert, especially in mock trials where judges want to give all the participants the chance to be heard. Even so, your ability to conduct voir dire of an expert and to challenge his qualifications will be noted and, if done well, considered in the score you receive on cross examination.
2. Cross examine on credentials
A court’s ruling that a witness may testify means only that the witness possesses sufficient credentials to pass the evidentiary threshold. It still may be possible to diminish the weight of the witness’s qualifications during cross examination. There are three basic methods for discrediting the value of an expert’s credentials.
a. Limit the scope of the witness’s expertise
Although an expert may be well qualified in a certain area or subspecialty, it may be possible to recast the issues of the case in such a way as to place them beyond the witness’s competence. Assume, for example, that the plaintiff’s expert in the restaurant scenario was tendered and accepted as an expert on lost profits:
QUESTION: Dr. Gupta, your primary consulting work involves business
valuation, correct?
ANSWER: That is my profession.
QUESTION: Issues of valuation usually involve an existing business, right?
ANSWER: That is the usual case.
QUESTION: People come to you when they want to buy or sell a business, or
when they have to value it for estate tax purposes, or perhaps
when there is a divorce?
ANSWER: Yes, those are all typical situations for business valuation.
QUESTION: You wouldn’t call yourself a management consultant, would you?
ANSWER: No, I do not get involved in operations.
QUESTION: Because your work is basically evaluative?
ANSWER: Exactly.
QUESTION: So someone who wanted assistance in expanding a business
would need to go to a different consultant, wouldn’t they?
ANSWER: Correct.
QUESTION: For example, there are consultants who specialize in site
evaluation, correct?
ANSWER: Yes, there are.
QUESTION: But you do not do that yourself?
ANSWER: No, I do not.
QUESTION: So if I wanted to evaluate the best possible locations for my
business outlets, you would recommend that I consult someone
else, isn’t that right?
ANSWER: Yes, I suppose that I would refer you.
Counsel may now argue that the crucial issue of location is beyond Dr. Gupta’s expertise and that her opinion regarding lost profits should therefore be discounted.
b. Stress missing credentials
An expert witness may be minimally qualified to testify but still lack certain important certifications, degrees, or licenses. Assume for example that the plaintiff in a personal injury case has called his psychotherapist to testify on the issue of damages. The witness was tendered and accepted as an expert and has completed his direct testimony. This cross examination followed:
QUESTION: Mr. Gruver, your degree is in social work, correct?
ANSWER: Yes, I have an MSW, and I am a licensed psychotherapist.
QUESTION: You do not have a doctorate in clinical psychology, do you?
ANSWER: No, I do not.
QUESTION: And of course you are not a psychiatrist?
ANSWER: That is correct.
QUESTION: I notice that your stationery lists your name as Gene Gary Gruver,
MSW.
ANSWER: Yes, that is right.
QUESTION: I have seen other social workers with the letters ACSW after their
names. What does ACSW stand for?
ANSWER: It stands for Accredited Clinical Social Worker.
QUESTION: That is an additional certification that some social workers earn,
correct?
ANSWER: Yes, that is correct.
QUESTION: But you have not achieved that certification, have you?
c. Contrast your expert’s credentials
It is most effective to point out an adverse witness’s missing credentials when their absence can be contrasted with your own expert’s superior qualifications. In the following example, assume that the plaintiff called a practicing attorney as an expert witness in a legal malpractice case. This scenario is taken from the defendant’s cross examination:
QUESTION: Ms. McCarthy, I understand that you are a member of the
American Bar Association Section of Litigation, correct?
ANSWER: Yes, I am.
QUESTION: The American Bar Association Section of Litigation is open to any
lawyer who is willing to pay the dues, correct?
ANSWER: That is right.
QUESTION: So you were not elected or chosen by your peers for membership
in that section, were you?
ANSWER: Nobody is.
QUESTION: I assume you are familiar with the American College of Trial
Lawyers?
ANSWER: I am.
QUESTION: That organization consists of lawyers who specialize in litigation
and the trial of cases, correct?
ANSWER: I believe so.
QUESTION: Membership in the American College is limited to 2 percent of the
lawyers in any given state, isn’t that right?
ANSWER: I think that is right.
QUESTION: And individuals have to be proposed and elected to membership
in the American College of Trial Lawyers?
ANSWER: I understand that to be the process.
QUESTION: You are not a member of the American College, are you?
ANSWER: No, I am not.
QUESTION: Are you aware that Karla Chrobak, the defendant’s expert witness,
is a member of the American College of Trial Lawyers?
ANSWER: I understand that she is.
Experts’ credentials can be contrasted on bases other than certification. It is fair game to point out your own witness’s greater or more specific experience, your witness’s teaching or publication record, or any other disparity that will enhance your expert and diminish the opposition.
Note, however, that all of the rules of basic cross examination apply here as well. You must be satisfied to elicit the fact of the contrasting qualifications. It will do you little good to argue with the opposing witness or to try to extract a concession that the credentials are inadequate.
B. Obtain Favorable Information
It will often be possible to obtain favorable concessions form the opposing party’s expert witness. As with all cross examination, it is usually wisest to attempt to extract such information near the beginning of the examination. Needless to say, you must be positive of the answers before launching into this sort of cross examination.
In general, the helpful material available from opposing experts will fall into the following categories:
1. Affirm your own expert
Even experts who ultimately disagree may have shared understandings. You may therefore contribute to the accreditation of your own expert by asking the opposing expert to acknowledge the reliability of your expert’s data, the validity of her assumptions, or the caliber of her credentials.
If this sort of helpful information is either obvious, given the expert’s affidavit, or implicit in his conclusions, it is fair game for your cross examination. Do not, however, attempt to elicit such affirmation out of thin air in a mock trial as witnesses are not prone to provide helpful information unless they will look plain silly disagreeing, or they can be impeached for disagreeing, or their own conclusions will be questioned if they disagree.
2. Elicit areas of agreement
In addition, it may be possible to elicit concessions from the opposing expert that go to the merits of the case. The adverse expert may, for example, be willing to agree with several of your major premises, even while disagreeing with your ultimate conclusion. Consider this cross examination of the defense expert in the drive-in restaurant case:
QUESTION: Dr. Harris, you are dissatisfied with the nature of Dr. Gupta’s study
of lost profits, correct?
ANSWER: Yes, I have trouble with Dr. Gupta’s methodology.
QUESTION: But you do agree, don’t you, that the chain had made a profit every
year they were in business?
ANSWER: I believe that is correct.
QUESTION: And every one of their outlets was profitable, correct?
ANSWER: I think that is right.
QUESTION: So someone must have been able to select profitable locations,
right?
ANSWER: I suppose so.
QUESTION: Dr. Gupta assumed that the chain would continue to choose good
locations, isn’t that right?
ANSWER: That is implicit in her model.
QUESTION: And you did not conduct an independent study of favorable or
unfavorable restaurant locations, did you?
ANSWER: No, I did not.
QUESTION: So you have no data that you can point to that would contradict Dr.
Gupta’s assumption?
ANSWER: I do not.
3. Criticize the opposing party’s conduct
Finally, if the expert’s affidavit includes criticisms of the opposing party’s conduct, you should bring out these criticisms on cross. For example:
QUESTION: Dr. Gupta, in order for you to reach your opinion on damages
it was necessary for you to review all of the plaintiff’s financial
records, correct?
ANSWER: Yes, that it correct.
QUESTION: Isn’t it true that the plaintiff company did not keep accurate
store-by-store records?
ANSWER: Yes, they aggregated their financial information, rather than
breaking it down store-by-store.
QUESTION: The absence of store-by-store information must have made your
job more difficult.
ANSWER: I found that I was able to achieve accurate results on the basis of
statewide projections.
QUESTION: Still, you could have projected profits for each individual 4
restaurant if the available financial data had been more precise,
isn’t that true?
ANSWER: Yes, that is true.
QUESTION: But because of the plaintiff’s aggregate record keeping, you were
not able to do that?
ANSWER: No, I was not.
C. Challenge the Witness’s Impartiality
Expert witnesses are supposed to be independent analysts, not advocates. The worst accusation you can make against an expert witness is that he has altered his opinion to fit a party’s needs – and, sadly, expert witnesses are guilty of this often in mock trials. Accordingly, it can be very effective to cross examine an expert on the issue of bias if the material is there to be exploited. Cross examination on bias falls into three basic categories.
1. Question fees
It is generally productive to cross examine an expert concerning her fee only in fairly limited circumstances. For example, it may demonstrate bias if the fee is especially large compared to that charged by another expert in the case. Similarly, it may be evidence of something less than objectivity if the witness’s affidavit indicates that she has a large unpaid fee outstanding at the time that she testifies.
2. Question the expert’s relationship with the participants
An expert’s relationship with a party of with counsel may also indicate a lack of impartiality. If there is information in your case file that the witness has worked with the opposing party’s lawyers repeatedly or has testified to similar conclusions in case after case, establish those facts during cross examination.
Some cases may involve testimony by in-house experts, perhaps a company’s own accountant or engineer. In most cases, such experts are susceptible to no more suggestion of bias than would be any other employee. In some situations, however, the in-house expert’s own judgment will be at issue in the case. An accountant, for example, may have failed to see that a debt was under-collateralized; an engineer may not have foreseen the need for more exacting tolerances. In these circumstances the cross examination must bring out the witness’s personal stake in the outcome of the litigation.
3. Question the expert’s positional bias
With or without regard to past retention, some experts seem wedded to certain professional, scientific, or intellectual positions. Experts frequently come to testify only for plaintiffs or only for defendants. Others reach only one of a range of conclusions. For example, it is said that some psychiatrists have been known never to find a single criminal defendant to be sane or competent. Where they are alluded to in the witness’s affidavit, these rigidly held positional biases can be exploited effectively on cross examination.
D. Point Out Omissions
An expert may be vulnerable on cross examination if she has failed to conduct essential tests or procedures, or she has neglected to consider all significant factors. As with questioning an expert’s fees, relationship to the participants, and personal biases, only question neglected tests or experiments if there is evidence of such omissions in your case file.
Other sorts of omissions are more commonplace. Witnesses are frequently asked to give evaluations concerning the validity or the accuracy of other experts’ work. A consulting pathologist, for example, might be asked to reevaluate the protocol of an autopsy conducted by the local medical examiner. No matter how prominent, a “second-opinion” witness can almost always be undermined by the fact that she did not conduct the primary investigation:
QUESTION: Dr. Combs, you reach a conclusion quite different from the
conclusions reached by Dr. Goretskaya, correct?
ANSWER: Yes.
QUESTION: Of course, you did not perform an autopsy yourself, did you?
ANSWER: No, I did not.
QUESTION: In fact, your information comes exclusively from Dr. Goretskaya’s
autopsy protocol?
ANSWER: That is right.
QUESTION: So you have relied on Dr. Goretskaya for all of your factual
information, isn’t that right?
ANSWER: Yes, I have.
QUESTION: You know nothing of the actual circumstances of the autopsy, other
than what you have learned from Dr. Goretskaya’s report?
ANSWER: Correct.
QUESTION: So at least with regard to gathering information, you have trusted
Dr. Goretskaya’s work.
This technique is not limited to “reevaluating” experts. It can be employed, in different form, with regard to any witness who relies exclusively on information provided by others:
QUESTION: Dr. Rosenblat, you base your opinion solely on an examination of
hospital records, correct?
ANSWER: Correct.
QUESTION: You did not examine the decedent yourself, did you
ANSWER: No, I did no
QUESTION: So your opinion can only be as good as the information you received,
right?
ANSWER: I suppose so.
QUESTION: If any of that information were faulty, that could affect the basis for
your opinion, correct?
ANSWER: Yes, depending upon the circumstances.
QUESTION: The same would be true of missing information, right?
ANSWER: Right.
QUESTION: You’ll agree with me, won’t you, that firsthand observation is
preferred for the purpose of diagnosis?
ANSWER: Yes, it is preferred.
Finally, many experts will testify on the basis of statistics or studies compiled from other sources. Frequently, such experts will not have investigated the reliability of the underlying data, and this can leave them vulnerable to cross examination.
E. Substitute Information
1. Change assumptions
Almost all experts must use assumptions of one sort or another in the course of formulating their opinions. An expert’s assumptions, however, might be unrealistic, unreliable, or unreasonably favorable to the party for whom the expert is testifying. It can be extremely effective, therefore, to ask the witness to alter an assumption, substituting one that you believe to be more in keeping with the evidence in the case. Consider the scenario from the drive-in restaurant case:
QUESTION: Dr. Gupta, your lost-profits calculation includes an assumption that
vehicle miles will continue to grow at the rate of 4 percent, correct?
ANSWER: Yes, that is the figure I used.
QUESTION: Will you agree that numerous factors can influence the growth of
vehicle miles?
ANSWER: Yes, I think that is obvious.
QUESTION: For example, vehicle miles actually fell during the oil embargo?
ANSWER: I believe that was true.
QUESTION: And if vehicle miles were to rise at a rate of less than 4 percent,
your estimate of lost profits would have to be reduced, correct?
ANSWER: Yes, that is right?
QUESTION: In fact, if we used an assumption of 2 percent, your estimate of
lost wages would have to be reduced by over $600,000?
ANSWER: I haven’t done the calculation, but it should be something in that
range.
When the substituted assumption calls for recalculation, it is generally most effective to do the math in advance, rather than asking the witness to do it on the spot. A request that the witness perform the computation is an invitation to quibble,
2. Vary the facts
A related technique is to vary the facts upon which the expert has relied, or to suggest additional facts, as in this example from the restaurant case:
QUESTION: Dr. Gupta, you are aware that the plaintiff’s most profitable outlet
was in the Foothills Mall, correct?
ANSWER: Yes.
QUESTION: And the continued existence of that outlet was a fact that you relied
on in calculating your result, right?
ANSWER: That is right.
QUESTION: But if the entire Foothills Mall were to close due to bankruptcy, then
you would have to change your conclusion, isn’t that right?
ANSWER: I suppose that is correct.
QUESTION: Well, you couldn’t have a profitable restaurant in a closed mall,
could you?
ANSWER: Of course not.
As with all cross examination questions, counsel must have a good faith basis for asserting new or varied facts to an expert witness.
3. Maximize any uncertainty
It is also possible to challenge an expert’s degree of certainty by suggesting alternative scenarios or explanations that are raised in your case file:
QUESTION: Dr. Harris, you believe that the plaintiff’s history of profitability is
largely attributable to location, correct?
ANSWER: Yes, I think that location is, and has been, the most important
factor.
QUESTION: But there are other factors that contribute to profitability, correct?
ANSWER: Certainly.
QUESTION: Some of those factors would be product quality, value, or market
demand, correct?
ANSWER: Yes.
QUESTION: You are familiar with the term “destination shopping,” aren’t you?
ANSWER: Of course.
QUESTION: That means that people will travel to seek out value or quality or
amenities,regardless of the location, correct?
ANSWER: That does happen.
QUESTION: Well, you didn’t interview the plaintiff’s customers, did you?
ANSWER: Of course not.
QUESTION: So you cannot be sure that location was of primary importance
to them, can you?
ANSWER: I can’t look into their minds.
QUESTION: Isn’t it possible that the plaintiff’s customers sought out their
restaurants because of value or quality?
ANSWER: It is possible.
QUESTION: So it is also possible that location was not the primary factor
in plaintiff’s profitability?
F. Challenge Technique or Theory
The most difficult, though frequently the most tempting, form of expert cross examination is to challenge the witness’s method, theory, or logic. It is possible, but extremely unlikely, that an expert will agree that she made a mistake or that her reasoning is faulty. In most cases you have little to gain by confronting an expert with any but the most glaring flaws, since that will only afford her an opportunity to explain. It is usually far more effective to point out the opposition’s errors (using your expert, if possible) and then to draw your own conclusions during final argument.
Experts can be used in commercial cases to interpret complex financial data, in personal injury cases to explain the nature of injuries, or in criminal cases to translate underworld slang into everyday language. Properly qualified, an expert can be asked to peer into the past, as when a forensic anthropologist determines the cause of death. Other experts may predict the future, as when an economist projects the expected life earnings of the deceased in a wrongful death case.
II. THE STANDARDS FOR EXPERT TESTIMONY
The Federal Rules of Evidence set forth the following standards to which expert testimony must conform:
A. Areas of Expertise
Expert opinions are admissible where the expert’s scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or a fact in issue. Thus, there are two threshold questions: Does the witness possess sufficient scientific, technical, or other specialized knowledge? Will that knowledge be helpful to the trier of fact?
As a student preparing for a mock trial, this step is usually completed for you since experts are identified (or obvious) in your case file and there is typically no question that the witness is qualified to offer testimony in a given area of expertise.
B. Scope of Opinion
Generally, experts can testify on any subject so long as it is within their area of expertise. Expert testimony may even be about an ultimate issue to be decided by the trier of fact. The only exception is that an expert in a criminal case may not state an opinion as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or a defense thereto. For example, in a murder case where temporary insanity is raised as a defense, an expert may not testify that the defendant was indeed temporarily insane at the time of the crime.
C. Bases for Opinions
An expert may testify to her opinion with or without explaining the facts or data on which the opinion is based. This allows the witness to state her opinion at the beginning of the examination, followed by explanation, rather than having to set forth all of the data at the outset before giving her opinion.
Additionally, an expert may testify on the basis of facts made known to her at or before the trial. Moreover, those facts or data need not be admissible in evidence so long as they are of a type “reasonably relied upon” by experts in the particular field.
III. DIRECT EXAMINATION OF EXPERTS
A. Planning Expert Testimony
In addition to following the techniques discussed in Chapter 3 (“Communication Techniques”) and Chapter 4 (“Direct Examination”), the rules below will help you achieve a successful direct examination of an expert witness.
1. Determine the expert’s theory
Just as a lawyer cannot succeed without developing a comprehensive theory of the case, neither will an expert’s testimony be effective without a viable, articulated theory. An expert’s theory is an overview or summary of her entire opinion. The theory must not only state a conclusion, but must also explain, in common-sense terms, why the expert is correct. Why did she settle upon a certain methodology? Why did she review particular data? Why is her approach reliable? Why is the opposing expert wrong? In other words, the expert witness must present a coherent narrative that provides the trier of fact with reasons for accepting the expert’s point of view.
The need for a theory is especially true in mock trial cases involving ”dueling experts,” where each side has its own expert witness and the experts’ opinions vary. In these cases, the trier of fact is faced with the task of sorting through the opinion testimony and choosing which witness to believe. It is likely that both experts will be amply qualified, and it is unlikely that either will make a glaring error in her analysis or testimony. The trier of fact will therefore be inclined to credit the expert whose theory is most believable.
Consider the following case. The plaintiff operated a statewide chain of drive-in restaurants but was put out of business by the defendant’s allegedly unfair competition. Assume that in the first trial the judge found that the defendant did participate in unfair competition and your mock trial is to be held to determine the amount of damages the defendant must pay to the plaintiff to compensate for the illegal commercial practice. Each side retained an expert witness who generated a damage model.
Not surprisingly, the plaintiff’s expert, Dr. Abha Gupta, found that the restaurants would have earned millions of dollars over the following five years had they not been driven out of business. Conversely, the defendant’s expert, Dr. Thomas Harris, held the view that the stores would have been marginally profitable, with total profits amounting to no more than a few hundred thousand dollars. Each witness backed up their opinions without computer printouts, charts, and graphs. Both used reliable data, and all of their figures were rigorously accurate.
The rival experts reached different conclusions because they followed different routes. Dr. Gupta calculated lost profits as a function of population growth and driving habits, concluding that the revenues at drive-in restaurants would rise in proportion to expected increases in population and miles driven. Dr. Harris, on the other hand, estimated damages on a “profit-per-store” basis, taking the plaintiff’s average profit for the existing restaurants and multiplying them by the number of outlets that the plaintiff planned to build.
Faced with this discrepancy, the task for counsel is to present the expert testimony in its most persuasive form. Whichever side you represent, it should be obvious that a simple recitation of your expert’s methods will be unlikely to carry the day. After all, we have assumed that both experts were meticulously careful within the confines of their respective approaches. For the same reason, the trier of fact will probably be unimpressed by an expert who reviews in detail all of her calculations. Numbers are boring in any event, and both experts are sure to have been accurate in their arithmetic.
Instead, the key to this case is to persuade the trier of fact that your expert chose the correct approach. Dr. Gupta must be asked to explain why lost profits can be determined on the basis of population growth; Dr. Harris has to support his reliance on profits per store. The prevailing expert will not be the one with the greatest mastery of the details, but rather the one who most successfully conveys the preferability of their theory. The most painstakingly prepared projection of population growth cannot succeed in persuading a judge or jury if they ultimately decide that only an analysis of profits per store can give them an accurate assessment of damages.
The importance of theory extends to all types of expert testimony. It is necessary, but not sufficient, for your expert to be thorough, exacting, highly regarded, incisive, honorable, and well prepared. Regardless, an expert’s testimony will suffer if the witness cannot support her opinion with common-sense reasons.
2. Encourage the use of plain language
Virtually every field of expertise creates its own technical and shorthand terms. The affidavits if any expert witnesses in your case file may accordingly include arcane and jargon-laden speech. While it is okay for your expert to repeat these terms while testifying, it is advisable to have them define and explain what each term means in plain language. For example:
QUESTION: Dr. Gettleman, do you have an opinion as to why the pressure
plate failed?
ANSWER: Yes. My tests indicate that the fastening bolts were overtorqued.
QUESTION: What do you mean when you say overtorqued?
ANSWER: I mean that the bolts were turned too far when they were tightened.
Finally, be sure you do not adopt the expert’s word choices. Many students, perhaps out of a desire to appear knowledgeable, tend to examine expert witnesses using the expert’s own jargon. Such examinations can take on the characteristics of a private, and completely inaccessible, conversation between the lawyer and the witness. Consider the following:
QUESTION: Dr. Winter, what injuries did you observe?
ANSWER: I observed multiple contusions on the anterior upper extremities.
QUESTION: Was there anything remarkable about the contusions?
ANSWER: Yes, They varied in color, which indicated that they had been
inflicted at different times.
QUESTION: Did the anterior location of the contusions indicate anything further
to you?
ANSWER: Yes. Their anterior locations suggested that they had been
inflicted from a superior position.
The lawyer and doctor are talking about bruises. The witness chose to use the term “contusions” because it is medically precise, and the lawyer’s adoption of the term encouraged the doctor to continue using it. While the lawyer may have succeeded in demonstrating his medical sophistication, he may have done so at the cost of the fact-finder’s comprehension.
3. Help to avoid narratives
Long narrativesare hard to follow and hard to digest. Anyone who ever sat through a long lecture or speech should understand how difficult it is to pay attention to a speaker for an extended period of time. This is particularly true of expert testimony, which often concentrates on complex or intricate details. Allowing an expert to testify in a long, unbroken stretch invites inattention.
Counsel can avoid narrative answers and reinitiate primacy by punctuating the expert’s testimony at logical breaking points, for example:
QUESTION: Dr. Harris, what is the significance of location in projecting profits
for a chain of drive-in restaurants?
ANSWER: Location is probably the single most important factor when it
comes to profitability in any retail business. Even if the overall
trend in an industry is upward, a poorly located business is unlikely
to benefit. This is especially true of the restaurant business.
QUESTION: Please explain.
ANSWER: The restaurant business is intensely local in nature. There are very
few restaurants that attract people from great distances. Most
people eat near their homes, their places of work, or their
shopping destinations. So, a restaurant in an undesirable
neighborhood or in a declining business district simply will not
draw customers.
QUESTION: Why is that?
ANSWER: Many restaurants depend heavily on luncheon trade. People on
their lunch break usually do not have more than an hour, so a
restaurant will not be able to draw their business unless it is
located near a fairly large number of employers. No matter how
well the economy is doing, a restaurant will not do well at
lunchtime if it is located in an area that happens to have
experienced a downturn.
Note that the lawyer in this example did not cut off the witness and did not limit the expert to unnaturally short answers. The lawyer did, however, use strategically interjected questions to break up the narrative, thereby continually reemphasizing the expert’s testimony.
4. Encourage the use of examples and analogies
Many complex ideas can be made understandable with examples and analogies. Expert witnesses should be encouraged to clarify their testimony through the use of such imagery. Consider the following use of an example to flesh out a relatively abstract concept:
QUESTION: Dr. Harris, please give us an example of how a restaurant chain
might do poorly, even in a state with an expanding population
and increasing vehicle miles.
ANSWER: Certainly. Many urban areas have experienced population growth
that is basically limited to the suburbs. A restaurant chain that was
concentrated in a central city would show almost no increased
profitability as a result of that growth. In fact, its profits might well
decline because of the population shift. That is why location is
such an important factor.
An analogy could serve the same purpose:
QUESTION: Dr. Harris, could you please explain the importance of location a
little further?
ANSWER: Well, maybe it would help to think about it this way. Imagine a
baseball league with eight teams. If the top two or three pennant
contenders are all located in big cities, they will obviously draw a
lot of fans. On the other hand, a cellar-dwelling team in a small
city would probably play to an empty stadium. So even if the
league’s overall attendance went up, that wouldn’t help to fill the
seats for the last place team. A poor location is a lot like being
in last place.
Be sure not to take the witness by surprise with a request for an example or analogy. The time to consider using these explanatory tools is during preparation, not on the spur of the moment in the midst of direct examination.
5. Prompt the witness to give internal summaries
Because of the potential length and complexity of expert testimony, it is important to highlight significant points through the use of internal summaries. For instance, ask the expert to point out the relevance of the most critical steps in his analysis, or request that he summarize the implications of his findings.
Think of the expert’s testimony as containing a series of steps or elements. At the conclusion of each step the expert should explain how he got there, why it is important, and where he is going next, as in the following example from the testimony of the defendant’s expert in the drive-in case:
QUESTION: Dr. Harris, please summarize your objections to Dr. Gupta’s
methodology.
ANSWER: The problem with Dr. Gupta’s approach is that she failed to
consider several of the most important factors in determining
profitability. Her reliance on population and vehicle miles led
her to dramatically overestimate the restaurant chain’s likely
profitability. Her study was especially deficient because it did
not account for either location or potential competition.
QUESTION: Were you able to conduct a more comprehensive study?
ANSWER: Yes. I conducted a study that included the six most important
factors, all of which were omitted by Dr. Gupta.
….
B. Organizing Expert Testimony
There is a certain logic to the direct examination of most experts. While the particulars and details will vary, there are a limited number of possible patterns for organizing the testimony. The following is a broad outline that can accommodate the specifics of most expert testimony.
1. Introduce the witness and foreshadow the testimony
The first step is to introduce the expert and explain her involvement in the case. Since expert testimony is different from lay testimony, it’s a good idea to clarify its purposes for the fact-finders so that the information that follows will be understood. Ask the witness how she became involved in the case and why she is present in court. Then ask the expert to explain how her opinion fits into the case at the very outset of the examination.
The plaintiff’s damages expert in the example from the preceding section might be introduced as follows:
QUESTION: Please state your name.
ANSWER: Dr. Abha Gupta.
QUESTION: Dr. Gupta, have you been retained to reach an expert opinion in
this case?
ANSWER: Yes.
QUESTION: Did you reach an opinion concerning the plaintiff’s lost profits?
ANSWER: Yes, I have calculated the amount of money that the plaintiff would
have earned.
QUESTION: We’ll talk about your opinion in detail in a few minutes, but right
now we have to talk about your qualifications to testify as an
expert in this case.
2. Elicit the expert’s qualifications
To testify as an expert, a witness must be qualified by reason of knowledge, skill, experience, training or education. This is a threshold question for the judge, who must determine whether the witness is qualified before permitting her to give opinion testimony. The qualification of the witness, then, is a necessary predicate for all of the testimony to follow. Care must be taken to qualify the expert in a manner that is both technically adequate and persuasive.
Although it is generally understood in mock trials that an expert witness whose affidavit is included in the case file is qualified to testify to her opinions, you should still demonstrate your understanding of the qualification process prior to eliciting those opinions.
a. Fulfill the technical requirements
The technical requirements for qualifying an expert witness are straightforward. It is usually adequate to show that the witness possesses some specialized skill or knowledge, acquired through appropriate experience or education, and that the witness is able to apply tat skill or knowledge in a manner relevant to the issues in the case. Thus, the minimal qualifications for the financial expert in the restaurant case could be established as follows:
QUESTION: Dr. Gupta, could you please tell the jury about your education?
ANSWER: Certainly. I have an undergraduate degree in business from the
University of Michigan and a Ph.D.in economics from
Northwestern University.
QUESTION: What work have you done since earning your doctorate?
ANSWER: I was a professor in the economics department at Washington
University for six years. Then I left to start my own consulting
firm, which is called Gupta & Associates.
QUESTION: Do you have a specialty within the field of economics?
ANSWER: Yes, my specialty is business valuation.
QUESTION: Has business valuation been your specialty both at Washington
University and at Gupta & Associates?
ANSWER: Yes.
QUESTION: What is the field of business valuation?
ANSWER: It is the study of all of the components that contribute to the fair
value of a business, including anticipated future profits, assets,
receivables, good will and investment potential.
The above examination confirms the expert’s qualifications by reason of both education and experience. Dr. Gupta should now be able to give an opinion as to the projected profits for the restaurant chain.
The establishment of basic qualifications, however, should not be counsel’s entire objective. It is equally if not more important to go on to qualify the witness as persuasively as possible.
b. Be persuasive when qualifying
The technical qualification of an expert merely allows the witness to testify in the form of an opinion. Counsel’s ultimate goal is to ensure that the opinion is accepted by the trier of fact. Persuasive qualification is particularly important in cases involving competing experts, since their relative qualifications may be one basis on which the fact-finder will decide which expert to believe.
It is a mistake, however, to think that more qualifications are necessarily more persuasive. An endless repetition of degrees, publications, awards, and appointments may easily overload any judge or juror’s ability, not to mention desire, to pay careful attention to the witness.
It is usually more persuasive to concentrate on a witness’s specific expertise, as opposed to her more generic or remote qualifications. Every economist, for example, is likely to hold a doctorate, so there is comparatively little advantage to be gained by spending valuable time expounding your expert’s academic degrees. Similarly, there is usually scant reason to go into matters such as the subject of the witness’s doctoral thesis, unless it bears directly on some issue in the case.
Experience is often more impressive than academic background. So, for example, a medical expert may be more impressive if she has actually practiced in the applicable specialty, as opposed to possessing knowledge that is strictly theoretical. When presenting such a witness, then, counsel should typically dwell on her experience, pointing out details such as the number of procedures she has performed, the hospitals were she is on staff, and the numbers of oter physicians who have consulted her.
Finally, it is frequently effective to emphasize areas of qualification where you know the opposing expert to be lacking. If your expert has a superior academic background, use the direct examination to point out why academic training is important. If your expert holds a certification that the opposing expert lacks, have her explain how difficult it is to become certified.
c. Tender the witness (if allowed)
Depending on your mock trial rules, the next step will be to tender the witness to the court as an expert in her specified field. The purpose of the tender is to inform the court that qualification has been completed and to give opposing counsel an opportunity either to conduct a voir dire examination of the witness (which we will discuss later in this chapter) or to object to the tender. In the restaurant example above, the financial expert would be tendered as follows:
COUNSEL: Your Honor, we tender Dr. Abha Gupta as an expert witness in the
field of business valuation and the projection of profits.
3. Elicit the expert’s opinion and theory
Following qualification, the next step in the direct examination of an expert witness is to elicit firm statements of opinion and theory,
a. Have the expert state opinions up front
Once the witness has been qualified (and accepted as an expert through a formal tender and ruling, if allowed), she may proceed to express her opinion without additional foundation. In other words, she may state her conclusions without first detailing the nature or extent of her background work or investigation.
Take advantage of this opportunity. Expert testimony tends to be arcane and boring. The intricate details of an expert’s preparation are unlikely to be interesting or even particularly understandable to the fact-finder. They will even be less captivating if they are offered in a void, without any advance notice of where the details are leading or why they are being explained. On the other hand, a clear statement of the expert’s conclusion can provide the context for the balance of the explanatory testimony. For example:
QUESTION: Dr. Gupta, do you have an opinion as to the profits that the plaintiff’s
restaurant chain would have made, if they hadn’t been forced out
of business?
ANSWER: Yes, I do.
QUESTION: What is your opinion?
ANSWER: I believe that the restaurant chain would have earned at least $3.2
million over the next five years, if they had been able to stay in
business.
QUESTION: How did you reach that opinion?
ANSWER: I based my calculations on the state’s projected population growth,
combined with the probable demand for fast-food, drive-in
restaurants.
By providing her opinion at the outset, the expert allows the trier of fact to comprehend the significance of the following details, which counsel is then free to inquire about further.
b. Quickly elicit the expert’s theory
Once the expert’s opinion has been stated, immediately provide the underlying theory. The theory should furnish the nexus between the expert’s conclusion and the data used to support the conclusion. In other words, the examination should follow this pattern: (1) here is my opinion; (2) here are the principles that support my opinion; (3) here is what I did to reach my final conclusion.
In the fast-food example, the expert’s theory should explain why population growth and vehicle miles are reliable indicators of projected profits:
QUESTION: Dr. Gupta, why did you base your calculations on the state’s
projected population growth?
ANSWER: The demand for fast food will rise as population grows. This is
particularly true because teenagers and parents of young children
are the largest purchasers of fast food, and they are also two of
the groups that increase most rapidly as population goes up.
QUESTION: Why did you also consider growth in vehicle miles?
ANSWER: Drive-in restaurants are especially sensitive to vehicle miles. As
people drive more they are exposed to more drive-in restaurants,
and they therefore buy more meals.
QUESTION: What did you conclude from these relationships?
ANSWER: I concluded that the profitability of a drive-in restaurant chain will rise
in proportion to a combination of general population growth and
increases in miles driven.
QUESTION: Did you consider only population growth and vehicle miles?
ANSWER: Of course not. I began by determining the chain’s profits under
current conditions, and I used those figures as a base. Then I
projected them forward for five years, using the government’s
statistics for population and driving.
QUESTION: Please tell us now exactly how you did that.
Note how this examination provides the context for the explanation to follow.
4. Elicit the explanation and support for the expert’s opinion
Having stated and supported her theory choice, the expert can now go on to detail the nature of her investigation and calculations. The trier of fact cannot be expected to take the expert at her word, so the validity and accuracy of her data and assumptions must be established.
a. Have the expert explain the data
The expert should be asked how she chose and obtained her data. She should also explain why her information is reliable. In the scenario above, for example, the expert could point out that government statistics on population and vehicle miles, are used to make many crucial decisions such as the configuration of traffic lights, the expansion of highways, and even the construction of schools.
The expert should also be asked to describe any tests or computations that she performed. It is not sufficient for the expert simply to relate the nature of the data. Rather, the expert should go on to explain how and why the data support her conclusions.
The treatment of underlying data is one of the trickiest aspects of expert testimony. Counsel should elicit a sufficiently detailed treatment of the data to persuade the fact-finder of its reliability but stopping well short of the point where their attention span is exhausted.
b. Be clear about what assumptions were made
Many experts rely upon assumptions. The financial expert in the fast-food case, for example, would no doubt assume that the relationship between sales and population growth would continue at historical rates. The expert would also probably assume a certain financial “discount rate” for reducing the dollars in her projection to present value. There is obviously nothing wrong with using appropriate presumptions, but their validity should be explained:
QUESTION: Dr. Gupta, did you make any assumptions in reaching your opinion
that the plaintiff’s restaurant chain would have earned $3.2 million
in profits?
ANSWER: Yes, I assumed that fast-food sales would continue to increase
in proportion to population at the same rate as they had in the past.
QUESTION: Why did you make that assumption?
ANSWER: The restaurant chain was put out of business, so there were no
actual sales to look at. I therefore had to project their most likely
sales, and for that I had to assume a base figure to project forward.
QUESTION: What did you use as your base figure?
ANSWER: I used the average growth for the entire industry.
QUESTION: Why did you use the industry average?
ANSWER: I used the industry average precisely because it is an average
of all of the companies in that particular business. That way I
could be sure that I wasn’t using a figure that was abnormally
high or abnormally low.
It is not necessary to explain or outline every hypothesis used by your expert, but the more important assumptions should be noted and supported.
5. Utilize theory differentiation if your case involves dueling experts
In cases involving dueling experts there will also be competing theories. Properly prepared and presented, each expert will attempt to explain to the trier of fact why her theory ought to be accepted. It can be particularly effective, therefore, to ask your expert to comment on the opposing expert’s work. The technique is called “theory differentiation” because it is most convincing when your expert discusses the shortcomings of the opposition theory.
In the previous few sections we have seen illustrations taken from the testimony of the plaintiff’s financial expert in a case involving lost profits. Now consider this example of theory differentiation, offered by the expert witness for the defendant in the same case, who has already be identified and qualified.
QUESTION: Dr. Harris, have you had an opportunity to review the work done
in this case by Dr. Abha Gupta?
ANSWER: Yes, I have.
QUESTION: Do you agree with Dr. Gupta’s damage projections?
ANSWER: No, I do not.
QUESTION: Why not?
ANSWER: Dr. Gupta based her estimate on a combination of population
growth and mileage assumptions, and this approach cannot
yield a reliable result.
QUESTION: Why is that?
ANSWER: Because it assumes too much. Dr. Gupta’s theory is that
restaurant revenues will inevitably rise with population and
automobile miles. While this might be true for the entire
restaurant industry, there is no reason to think that it would
be true for any particular chain of restaurants. To reach a
dependable result for an individual chain you would have to
consider many other factors.
QUESTION: What factors are those?
ANSWER: At a minimum you would have to consider location, market niche,
product recognition, potential competition, specific demographics,
and general economic climate.
QUESTION: Did Dr. Gupta consider any of those factors?
ANSWER: No, she did not.
QUESTION: Please give us an example of how location could affect the
profit projections.
ANSWER: Certainly. Population always grows unevenly. Even if the overall
population rises in a state or a city, it might stay constant or fall in
certain areas. Therefore, a restaurant chain might not be able to
take advantage of population increases if all of their outlets were
placed in stagnant or declining locations.
The defense expert has deftly exposed the flaws in the plaintiff’s theory. There are two advantages to this use of theory differentiation. First, it enables the expert to concentrate on major issues, as opposed to picking out petty mistakes. Second, it allows the expert to avoid personal attacks. In essence, the above example has Dr. Harris saying: “I have no personal quarrel with Dr. Gupta; she simply chose an inadequate theory.” This “high road” approach will contribute to the dignity and persuasiveness of the witness.
The timing of theory differentiation is important. Generally, it is best to build up your expert’s credibility through his explanation of his opinion before attempting to teardown opposing counsel’s expert and her opinion. Because of the order of trials, however, defense counsel ay sometimes prefer to over the information early in the examination to rebut the plaintiff’sexpert immediately and forcefully.
6. Enable the expert to go out with a bang
An expert’s direct examination should conclude with a powerful restatement of the witness’s most important conclusions.
IV. CROSS EXAMINATION OF EXPERTS
The rules and guidelines for content and organization discussed in Chapter 6 (“Cross Examination”) apply equally to the cross examination of experts. What follows below is a list of techniques that can be used primarily or most effectively with expert witnesses. Each mock trial case file is different and it is likely that only a few of the following techniques will be applicable in any particularly case. Thus, consider all of the following but use only those that clearly apply.
A. Challenge the Witness’s Credentials
An expert witness’s credentials are subject to challenge either on voir dire or during cross examination. Voir dire may be used to object to the legal sufficiency of the expert’s qualifications, while cross examination is the time to attack their weight.
1. Voir dire on credentials
Once the proponent of an expert has concluded the qualification segment of the direct examination, opposing counsel is entitled a voir dire of the witness (unless prohibited by competition rules). A voir dire examination temporarily suspends the direct so that the opponent of the proffered evidence can inquire as to its evidentiary sufficiency. With regard t the qualification of experts, this means that opposing counsel can interrupt the direct examination in order to conduct a mini-cross limited to the issue of the witness’s credentials.
In competitions that require the tender of expert witnesses, voir dire typically proceeds once the witness is proffered to the court:
PROPONENT: Your Honor, we tender Dr. Thomas Harris as an expert on the
subject of lost profits.
COURT: Any objection, counsel?
OPPONENT: Your Honor, we would like the opportunity to conduct a voir dire
examination.
COURT: You may examine the witness on the subject of his qualifications
to testify.
In competitions where tender is not allowed, you must raise an objection at the point where the witness begins to offer an opinion. Do not wait to be invited by the court:
PROPONENT: Dr. Harris, do you have an opinion as to the profits that the
plaintiff would have earned if the restaurant chain had not
been driven out of business?
OPPONENT: Objection. Your Honor, we would like an opportunity for voir dire
of this witness before he is allowed to give opinion testimony.
COURT: You may examine the witness on the subject of his qualifications
to testify.
Note that voir dire is limited to the question of the admissibility of evidence; it is not the time to launch into a wide-ranging attack on the expert’s integrity, methods, data, or bias. Thus, voir dire regarding an expert’s credentials is restricted to the foundation for the witness’s ability to opine on the issues in the case. In other words, is the witness qualified as an expert by knowledge, skill, experience, training, or education? The witness may proceed with his testimony so long as he meets this minimum requirement.
It is frequently an uphill battle to persuade a judge that a proffered witness should not be allowed to testify as an expert, especially in mock trials where judges want to give all the participants the chance to be heard. Even so, your ability to conduct voir dire of an expert and to challenge his qualifications will be noted and, if done well, considered in the score you receive on cross examination.
2. Cross examine on credentials
A court’s ruling that a witness may testify means only that the witness possesses sufficient credentials to pass the evidentiary threshold. It still may be possible to diminish the weight of the witness’s qualifications during cross examination. There are three basic methods for discrediting the value of an expert’s credentials.
a. Limit the scope of the witness’s expertise
Although an expert may be well qualified in a certain area or subspecialty, it may be possible to recast the issues of the case in such a way as to place them beyond the witness’s competence. Assume, for example, that the plaintiff’s expert in the restaurant scenario was tendered and accepted as an expert on lost profits:
QUESTION: Dr. Gupta, your primary consulting work involves business
valuation, correct?
ANSWER: That is my profession.
QUESTION: Issues of valuation usually involve an existing business, right?
ANSWER: That is the usual case.
QUESTION: People come to you when they want to buy or sell a business, or
when they have to value it for estate tax purposes, or perhaps
when there is a divorce?
ANSWER: Yes, those are all typical situations for business valuation.
QUESTION: You wouldn’t call yourself a management consultant, would you?
ANSWER: No, I do not get involved in operations.
QUESTION: Because your work is basically evaluative?
ANSWER: Exactly.
QUESTION: So someone who wanted assistance in expanding a business
would need to go to a different consultant, wouldn’t they?
ANSWER: Correct.
QUESTION: For example, there are consultants who specialize in site
evaluation, correct?
ANSWER: Yes, there are.
QUESTION: But you do not do that yourself?
ANSWER: No, I do not.
QUESTION: So if I wanted to evaluate the best possible locations for my
business outlets, you would recommend that I consult someone
else, isn’t that right?
ANSWER: Yes, I suppose that I would refer you.
Counsel may now argue that the crucial issue of location is beyond Dr. Gupta’s expertise and that her opinion regarding lost profits should therefore be discounted.
b. Stress missing credentials
An expert witness may be minimally qualified to testify but still lack certain important certifications, degrees, or licenses. Assume for example that the plaintiff in a personal injury case has called his psychotherapist to testify on the issue of damages. The witness was tendered and accepted as an expert and has completed his direct testimony. This cross examination followed:
QUESTION: Mr. Gruver, your degree is in social work, correct?
ANSWER: Yes, I have an MSW, and I am a licensed psychotherapist.
QUESTION: You do not have a doctorate in clinical psychology, do you?
ANSWER: No, I do not.
QUESTION: And of course you are not a psychiatrist?
ANSWER: That is correct.
QUESTION: I notice that your stationery lists your name as Gene Gary Gruver,
MSW.
ANSWER: Yes, that is right.
QUESTION: I have seen other social workers with the letters ACSW after their
names. What does ACSW stand for?
ANSWER: It stands for Accredited Clinical Social Worker.
QUESTION: That is an additional certification that some social workers earn,
correct?
ANSWER: Yes, that is correct.
QUESTION: But you have not achieved that certification, have you?
c. Contrast your expert’s credentials
It is most effective to point out an adverse witness’s missing credentials when their absence can be contrasted with your own expert’s superior qualifications. In the following example, assume that the plaintiff called a practicing attorney as an expert witness in a legal malpractice case. This scenario is taken from the defendant’s cross examination:
QUESTION: Ms. McCarthy, I understand that you are a member of the
American Bar Association Section of Litigation, correct?
ANSWER: Yes, I am.
QUESTION: The American Bar Association Section of Litigation is open to any
lawyer who is willing to pay the dues, correct?
ANSWER: That is right.
QUESTION: So you were not elected or chosen by your peers for membership
in that section, were you?
ANSWER: Nobody is.
QUESTION: I assume you are familiar with the American College of Trial
Lawyers?
ANSWER: I am.
QUESTION: That organization consists of lawyers who specialize in litigation
and the trial of cases, correct?
ANSWER: I believe so.
QUESTION: Membership in the American College is limited to 2 percent of the
lawyers in any given state, isn’t that right?
ANSWER: I think that is right.
QUESTION: And individuals have to be proposed and elected to membership
in the American College of Trial Lawyers?
ANSWER: I understand that to be the process.
QUESTION: You are not a member of the American College, are you?
ANSWER: No, I am not.
QUESTION: Are you aware that Karla Chrobak, the defendant’s expert witness,
is a member of the American College of Trial Lawyers?
ANSWER: I understand that she is.
Experts’ credentials can be contrasted on bases other than certification. It is fair game to point out your own witness’s greater or more specific experience, your witness’s teaching or publication record, or any other disparity that will enhance your expert and diminish the opposition.
Note, however, that all of the rules of basic cross examination apply here as well. You must be satisfied to elicit the fact of the contrasting qualifications. It will do you little good to argue with the opposing witness or to try to extract a concession that the credentials are inadequate.
B. Obtain Favorable Information
It will often be possible to obtain favorable concessions form the opposing party’s expert witness. As with all cross examination, it is usually wisest to attempt to extract such information near the beginning of the examination. Needless to say, you must be positive of the answers before launching into this sort of cross examination.
In general, the helpful material available from opposing experts will fall into the following categories:
1. Affirm your own expert
Even experts who ultimately disagree may have shared understandings. You may therefore contribute to the accreditation of your own expert by asking the opposing expert to acknowledge the reliability of your expert’s data, the validity of her assumptions, or the caliber of her credentials.
If this sort of helpful information is either obvious, given the expert’s affidavit, or implicit in his conclusions, it is fair game for your cross examination. Do not, however, attempt to elicit such affirmation out of thin air in a mock trial as witnesses are not prone to provide helpful information unless they will look plain silly disagreeing, or they can be impeached for disagreeing, or their own conclusions will be questioned if they disagree.
2. Elicit areas of agreement
In addition, it may be possible to elicit concessions from the opposing expert that go to the merits of the case. The adverse expert may, for example, be willing to agree with several of your major premises, even while disagreeing with your ultimate conclusion. Consider this cross examination of the defense expert in the drive-in restaurant case:
QUESTION: Dr. Harris, you are dissatisfied with the nature of Dr. Gupta’s study
of lost profits, correct?
ANSWER: Yes, I have trouble with Dr. Gupta’s methodology.
QUESTION: But you do agree, don’t you, that the chain had made a profit every
year they were in business?
ANSWER: I believe that is correct.
QUESTION: And every one of their outlets was profitable, correct?
ANSWER: I think that is right.
QUESTION: So someone must have been able to select profitable locations,
right?
ANSWER: I suppose so.
QUESTION: Dr. Gupta assumed that the chain would continue to choose good
locations, isn’t that right?
ANSWER: That is implicit in her model.
QUESTION: And you did not conduct an independent study of favorable or
unfavorable restaurant locations, did you?
ANSWER: No, I did not.
QUESTION: So you have no data that you can point to that would contradict Dr.
Gupta’s assumption?
ANSWER: I do not.
3. Criticize the opposing party’s conduct
Finally, if the expert’s affidavit includes criticisms of the opposing party’s conduct, you should bring out these criticisms on cross. For example:
QUESTION: Dr. Gupta, in order for you to reach your opinion on damages
it was necessary for you to review all of the plaintiff’s financial
records, correct?
ANSWER: Yes, that it correct.
QUESTION: Isn’t it true that the plaintiff company did not keep accurate
store-by-store records?
ANSWER: Yes, they aggregated their financial information, rather than
breaking it down store-by-store.
QUESTION: The absence of store-by-store information must have made your
job more difficult.
ANSWER: I found that I was able to achieve accurate results on the basis of
statewide projections.
QUESTION: Still, you could have projected profits for each individual 4
restaurant if the available financial data had been more precise,
isn’t that true?
ANSWER: Yes, that is true.
QUESTION: But because of the plaintiff’s aggregate record keeping, you were
not able to do that?
ANSWER: No, I was not.
C. Challenge the Witness’s Impartiality
Expert witnesses are supposed to be independent analysts, not advocates. The worst accusation you can make against an expert witness is that he has altered his opinion to fit a party’s needs – and, sadly, expert witnesses are guilty of this often in mock trials. Accordingly, it can be very effective to cross examine an expert on the issue of bias if the material is there to be exploited. Cross examination on bias falls into three basic categories.
1. Question fees
It is generally productive to cross examine an expert concerning her fee only in fairly limited circumstances. For example, it may demonstrate bias if the fee is especially large compared to that charged by another expert in the case. Similarly, it may be evidence of something less than objectivity if the witness’s affidavit indicates that she has a large unpaid fee outstanding at the time that she testifies.
2. Question the expert’s relationship with the participants
An expert’s relationship with a party of with counsel may also indicate a lack of impartiality. If there is information in your case file that the witness has worked with the opposing party’s lawyers repeatedly or has testified to similar conclusions in case after case, establish those facts during cross examination.
Some cases may involve testimony by in-house experts, perhaps a company’s own accountant or engineer. In most cases, such experts are susceptible to no more suggestion of bias than would be any other employee. In some situations, however, the in-house expert’s own judgment will be at issue in the case. An accountant, for example, may have failed to see that a debt was under-collateralized; an engineer may not have foreseen the need for more exacting tolerances. In these circumstances the cross examination must bring out the witness’s personal stake in the outcome of the litigation.
3. Question the expert’s positional bias
With or without regard to past retention, some experts seem wedded to certain professional, scientific, or intellectual positions. Experts frequently come to testify only for plaintiffs or only for defendants. Others reach only one of a range of conclusions. For example, it is said that some psychiatrists have been known never to find a single criminal defendant to be sane or competent. Where they are alluded to in the witness’s affidavit, these rigidly held positional biases can be exploited effectively on cross examination.
D. Point Out Omissions
An expert may be vulnerable on cross examination if she has failed to conduct essential tests or procedures, or she has neglected to consider all significant factors. As with questioning an expert’s fees, relationship to the participants, and personal biases, only question neglected tests or experiments if there is evidence of such omissions in your case file.
Other sorts of omissions are more commonplace. Witnesses are frequently asked to give evaluations concerning the validity or the accuracy of other experts’ work. A consulting pathologist, for example, might be asked to reevaluate the protocol of an autopsy conducted by the local medical examiner. No matter how prominent, a “second-opinion” witness can almost always be undermined by the fact that she did not conduct the primary investigation:
QUESTION: Dr. Combs, you reach a conclusion quite different from the
conclusions reached by Dr. Goretskaya, correct?
ANSWER: Yes.
QUESTION: Of course, you did not perform an autopsy yourself, did you?
ANSWER: No, I did not.
QUESTION: In fact, your information comes exclusively from Dr. Goretskaya’s
autopsy protocol?
ANSWER: That is right.
QUESTION: So you have relied on Dr. Goretskaya for all of your factual
information, isn’t that right?
ANSWER: Yes, I have.
QUESTION: You know nothing of the actual circumstances of the autopsy, other
than what you have learned from Dr. Goretskaya’s report?
ANSWER: Correct.
QUESTION: So at least with regard to gathering information, you have trusted
Dr. Goretskaya’s work.
This technique is not limited to “reevaluating” experts. It can be employed, in different form, with regard to any witness who relies exclusively on information provided by others:
QUESTION: Dr. Rosenblat, you base your opinion solely on an examination of
hospital records, correct?
ANSWER: Correct.
QUESTION: You did not examine the decedent yourself, did you
ANSWER: No, I did no
QUESTION: So your opinion can only be as good as the information you received,
right?
ANSWER: I suppose so.
QUESTION: If any of that information were faulty, that could affect the basis for
your opinion, correct?
ANSWER: Yes, depending upon the circumstances.
QUESTION: The same would be true of missing information, right?
ANSWER: Right.
QUESTION: You’ll agree with me, won’t you, that firsthand observation is
preferred for the purpose of diagnosis?
ANSWER: Yes, it is preferred.
Finally, many experts will testify on the basis of statistics or studies compiled from other sources. Frequently, such experts will not have investigated the reliability of the underlying data, and this can leave them vulnerable to cross examination.
E. Substitute Information
1. Change assumptions
Almost all experts must use assumptions of one sort or another in the course of formulating their opinions. An expert’s assumptions, however, might be unrealistic, unreliable, or unreasonably favorable to the party for whom the expert is testifying. It can be extremely effective, therefore, to ask the witness to alter an assumption, substituting one that you believe to be more in keeping with the evidence in the case. Consider the scenario from the drive-in restaurant case:
QUESTION: Dr. Gupta, your lost-profits calculation includes an assumption that
vehicle miles will continue to grow at the rate of 4 percent, correct?
ANSWER: Yes, that is the figure I used.
QUESTION: Will you agree that numerous factors can influence the growth of
vehicle miles?
ANSWER: Yes, I think that is obvious.
QUESTION: For example, vehicle miles actually fell during the oil embargo?
ANSWER: I believe that was true.
QUESTION: And if vehicle miles were to rise at a rate of less than 4 percent,
your estimate of lost profits would have to be reduced, correct?
ANSWER: Yes, that is right?
QUESTION: In fact, if we used an assumption of 2 percent, your estimate of
lost wages would have to be reduced by over $600,000?
ANSWER: I haven’t done the calculation, but it should be something in that
range.
When the substituted assumption calls for recalculation, it is generally most effective to do the math in advance, rather than asking the witness to do it on the spot. A request that the witness perform the computation is an invitation to quibble,
2. Vary the facts
A related technique is to vary the facts upon which the expert has relied, or to suggest additional facts, as in this example from the restaurant case:
QUESTION: Dr. Gupta, you are aware that the plaintiff’s most profitable outlet
was in the Foothills Mall, correct?
ANSWER: Yes.
QUESTION: And the continued existence of that outlet was a fact that you relied
on in calculating your result, right?
ANSWER: That is right.
QUESTION: But if the entire Foothills Mall were to close due to bankruptcy, then
you would have to change your conclusion, isn’t that right?
ANSWER: I suppose that is correct.
QUESTION: Well, you couldn’t have a profitable restaurant in a closed mall,
could you?
ANSWER: Of course not.
As with all cross examination questions, counsel must have a good faith basis for asserting new or varied facts to an expert witness.
3. Maximize any uncertainty
It is also possible to challenge an expert’s degree of certainty by suggesting alternative scenarios or explanations that are raised in your case file:
QUESTION: Dr. Harris, you believe that the plaintiff’s history of profitability is
largely attributable to location, correct?
ANSWER: Yes, I think that location is, and has been, the most important
factor.
QUESTION: But there are other factors that contribute to profitability, correct?
ANSWER: Certainly.
QUESTION: Some of those factors would be product quality, value, or market
demand, correct?
ANSWER: Yes.
QUESTION: You are familiar with the term “destination shopping,” aren’t you?
ANSWER: Of course.
QUESTION: That means that people will travel to seek out value or quality or
amenities,regardless of the location, correct?
ANSWER: That does happen.
QUESTION: Well, you didn’t interview the plaintiff’s customers, did you?
ANSWER: Of course not.
QUESTION: So you cannot be sure that location was of primary importance
to them, can you?
ANSWER: I can’t look into their minds.
QUESTION: Isn’t it possible that the plaintiff’s customers sought out their
restaurants because of value or quality?
ANSWER: It is possible.
QUESTION: So it is also possible that location was not the primary factor
in plaintiff’s profitability?
F. Challenge Technique or Theory
The most difficult, though frequently the most tempting, form of expert cross examination is to challenge the witness’s method, theory, or logic. It is possible, but extremely unlikely, that an expert will agree that she made a mistake or that her reasoning is faulty. In most cases you have little to gain by confronting an expert with any but the most glaring flaws, since that will only afford her an opportunity to explain. It is usually far more effective to point out the opposition’s errors (using your expert, if possible) and then to draw your own conclusions during final argument.