1.  Introduction

Cross-examining an expert witness is one of the most challenging and exciting things we do as trial lawyers. Nothing is more rewarding than to sit down after an effective examination with the feeling that you have neutralized the opposing expert and by doing so greatly helped your case. But in order to obtain that level of satisfaction there is much work to do in preparation and developing an effective strategy.

In analyzing the challenge we must be honest with ourselves that no matter how smart we are or how much we study we are not going to be able to match the expert’s level of knowledge in his or her field of expertise. But that does not mean we are not going to try to educate ourselves to the maximum extent possible in the narrow area of medicine, engineering or whatever the specialty is regarding the relevant scientific topic.   For medical witnesses we can read all of the most relevant medical literature articles on the narrow area involved in the case as well as obtain background knowledge from textbooks to help us understand those articles. We also have our own experts to help us understand complex scientific topics. Using these resources we can prepare ourselves sufficiently to attack the weak points underpinning an expert’s opinion.This article will first discuss some of the basic legal principles involved in conducting an effective cross-examination of an expert. We will then discuss strategies and techniques that we have utilized in the past to attack the opposing experts’ opinions. As will be further emphasized below, it is important to look at each cross-examination as a unique and different experience from any of the ones you have done in the past and to utilize some but never all of the strategies and techniques that will be discussed. Less can definitely be more when it comes to cross-examination and length very rarely equates to effectiveness.

Finally, although both of us have tried a good many cases, and one of us (Schwarz) had the great opportunity to learn from the other (Faraci), each of us approaches witnesses a little differently based upon our individual personalities and comfort zones. In cross-examination like every other aspect of trial practice before a jury, you must be yourself and not try to copy someone else’s style the way an actor assumes a role. You can learn from watching others, but you need to develop your own style in using these strategies and techniques in order to make them truly effective. [Part 2 coming Wednesday, May 26, 2010]