4.  Strategy in Approaching Cross-Examination

Above we discussed the tools that you have available to use for cross-examination. But what distinguishes good from great cross-examiners is knowing which tools to use in which situations and not trying to always use all of them at once. There are a wide variety of strategies and tactics you can utilize in cross-examining an expert witness. We have set forth some of the common ones in the sections below. Remember, however, that you will rarely wish to use all of them with one witness.

Once you know all of the different areas you want to address in your cross-examination (the “chapters” described above) it is also important to arrange the chapters in the best possible order for effectiveness. Sometimes order is self-evident because one issue is a prerequisite of another and must be done first. However, you should always try to follow Prof. Irving Younger’s sage wisdom “Start on a high note, end on a high note”. This strategy is important for both the jury and the witness. If you score points with your first chapter you engage the jury and get their attention for what is to follow. Conversely, if your first efforts fall flat the jury is likely to begin to tune you out entirely. In addition, regardless of how many times an expert has testified all witnesses have some nerves going into cross-examination. You want to build on this insecurity and not allow them to gain confidence by deftly fending off your very first attack. Ending on a high note just makes sense, as the last part the jury hears and is likely to best recall is among the most effective attacks you have.a.  Attacking the factual basis of the expert’s opinion

Although the expert has received training you never did and has practiced in a field in which you have never practiced, there is one thing you do know much better than that expert -  the facts of your case. Interestingly, the more experts testify and become familiar with the courtroom setting the more lax they become in learning the facts of the case assuming that experience and superior knowledge will get them through. When you have undercut the facts presented by the expert as the basis for his opinion it allows you to begin your discussion of the expert’s testimony during closing with the line: “Everyone is entitled to his own opinion but Dr. Smith is not entitled to his own facts”. Attacking an expert on the facts underlying his opinion allows you to avoid the fight on the technical stuff that may confuse the jury and makes your job easier. If the jury finds consistently with your version of the facts then they can essentially disregard the expert’s opinion which is based upon different facts and never get to the more troublesome areas of science where jury comprehension is more difficult.

There are frequently cases where experts provide opinions based upon facts that are inconsistent with those in the record. In a recent trial involving a case where a patient’s leg came off of the operating table during the surgery which resulted in a permanent nerve injury, the defense expert testified on direct that the hospital staff did not depart from the standard of care and took all proper precautions to protect the patient. However, on cross the witness was confronted with the actual testimony from the staff in which it was clear that no one really had a recollection of what was done. In the end the expert was left with an opinion which he claimed to be based upon the fact that the hospital had policies and he assumed that all of the staff must have followed those policies – in essence, an inadmissible opinion.

b.  Narrowing the areas of disagreement

In even the most contentious cases the areas of disagreement between experts may actually be quite small. By narrowing those areas for the jury you can make their choice between accepting one expert and rejecting the other easier by boiling the controversy down to its simplest elements. In a recent case the issue was how an infection had occurred to the area of the patient’s larynx. Plaintiff argued it was caused by the manner in which the NG tube was inserted by a nurse at the defendant hospital. The defense theory was that simply the fact that the tube was in place for a period of time caused an erosion of the esophagus and resulted in something referred to as “NG tube syndrome”. Although these two theories sounded very different, they were really quite similar. At the outset of cross-examination the issues were narrowed with the following questions:

You agree that there was some damage to the mucosa in the larynx or post cricoid are?

This allowed the normal bacteria in plaintiff’s upper GI tract to get outside of the esophagus and infect the post cricoid area?

You also agree that this infection led directly to plaintiff’s tracheostomy and the need for the two surgeries to cut away portions of the vocal cords to allow plaintiff to breath better?

You also agree that as a result of the infection and the subsequent surgeries plaintiff has a smaller than normal airway that makes him short of breath with even minimal exertion and has also lost the strength and quality of his voice?

By obtaining the agreement of the expert on these points the case boiled down to what caused the injury to the esophagus. That did not mean the case was won (it actually resulted in a hung jury and subsequently settled) but it did reduce the level of complexity that the jury needed to understand down to a single basic issue.

c.  Establishing medical principles with expert that help support your expert’s opinion

In most cases you need to get into the medicine or other expertise of the witness. However, this does not mean that you need to go directly to the expert’s ultimate opinion. Rather, you can try to find areas of the topic that the expert will be hard pressed to refute and which will add credence to your own expert’s opinion. To do this you must put together a series of questions that will help educate the jury and with which the doctor will have great difficulty arguing. Here is an example from the case where the leg came off the operating table:

Different mechanisms of injury cause different injury patterns in nerves, correct?

Peripheral nerves are inherently elastic?

But when traction forces exceed the nerve’s capacity to stretch, that is when injury occurs?

If the force applied is great enough, a complete loss of continuity may occur? 

But more commonly, these types of injury cause only a partial loss of continuity?

The location where individual neurons are damaged along the course of the nerve is not always uniform in a stretch injury?

If there is nerve compression, then all of the neurons are damaged at the point of compression?

By establishing medical facts like these through the defense expert you can reinforce your theory of the case and your expert’s opinion. As will be discussed below, you can also do this with treating doctors so that there is more reinforcement for your expert’s theory and more repetition of these important principles for the jurors to help understanding and retention. [Part 4b coming Wednesday, June 23, 2010]