Cross-Examining the Experts

AuthorJohn Hollander
cross-examining the experts
chapter six
Cross-Examining the
Introduction to Cross-Examining Experts
-   is quite daunting. To
start with, most are professionals, just like the cross-exa-
miner. For another thing, they usually know their subject
area better than the cross-examiner — much better. ird,
they have condence. It is dicult to undermine several
years of training and professional practice, which is what
most of them have.
As with any cross-examination, there are several com-
mon objectives:
To challenge the testimony of the witness.
To challenge the credibility of the witness.
To challenge an element of the opposition’s case an-
To establish an element of the cross-examiner’s case
To challenge or support what other witnesses say.
is chapter provides several techniques that may or
may not work in any given situation. What is mandatory
repeat, mandatory is that the cross-examination be
    
scripted. is requires preparation. It is not uncommon
that a short cross-examination of thirty minutes takes days
to prepare.
Careful cross-examiners must perform all of these tasks
before preparing to cross-examine:
Study the report submitted by the expert.
Parse the curriculum vitae for weaknesses.
Pour through everything available that the expert
ever wrote, or is quoted as saying.
Read up on the specic area’s subject matter that
deals with the subject of the opinion.
Comb through all of the facts of the case to see
where the assumptions can be challenged.
Consider other expert reports in the case.
Identify the role of the conclusions within case an-
After all this comes the hard part. ink! What are
the points that are worth stressing? How can they
be made through this witness?
All the above steps only arm cross-examiners to start
work on their outlines. If there is one rule for a successful
cross it is this: only ask questions to make a specic point.
at is the great advantage held by cross-examiners. ey
get to frame the questions.
Unlike earlier chapters, this chapter will focus on a trial
in which the author was counsel for the plainti, Rowe v
Unum Life Insurance Company of America.
In this long-term disability (LTD) case, the plainti
alleged that he suered a psychotic reaction to an experi-
1 2006 CanLII 15772 (ON SC) [Rowe].
cross-examining the experts
mental treatment for Hepatitis C, a cocktail of Interferon
A and Ribavirin. An earlier LTD settlement prevented him
from claiming in the current action unless the disability
were “caused solely” by the treatment. At issue was whether
the treatment was the sole cause of the reaction.
ere were several experts who testied for both sides.
e sections of this chapter will present sequences of c-
tional cross-examination of these witnesses that demon-
strate the techniques proposed in the sections. Except in
one case, the sequences did not occur. In this way, the
facts of the court case become the case study to showcase
the techniques.
e author wants to acknowledge the excellent tech-
nique demonstrated by his opposing counsel and the thor-
ough, detailed, and professional reasons for decision of the
very learned trial judge.
A user warning label should apply to all the tips and
techniques in this handbook. In litigation, there are so
many judgment calls, so many twists and turns, that one
size does not t all situations. Cross-examination is art, not
science. Practice and experience will improve performance,
but they do not make perfect.
Cast of Characters (as Introduced by the Trial
For the plaintif‌f
dr hogan-finlay
[38] While Dr. Hogan-Finlay was not an “eye wit-
ness”, she had signif‌icant contact with Mr. Rowe as
his treating psychologist from July 1995 until May

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