Cross-examining the opposing expert
| Author | John McLeish |
| Pages | 121-136 |
121
g Winer 2009
Crs-examinin he ppsing expert
JOHN McLEISH
In almost every cross-examination of an opposing expert, there are
points to be scored. Cross-examining an opposing expert is an opportun-
ity to tell your client’s story, gain admissions from the opposing expert,
emphasize the strengths in your client’s case and expose weaknesses in your
opponent’s case. It is a rare situation where an opposing expert cannot be
used to achieve some of these objectives. In preparing your cross-examina-
tion, you will need to dene your goals clearly and know what it is that you
want to achieve with the cross-examination.
THE AMMUNITION YOU REQUIRE
The following are the key documents that you can have available to you
to provide ammunition to accomplish your goals as cross-examiner:
1. The expert’s resumé.
2. The report.
3. Reports and statements of other experts in the case.
4. The foundation documents the expert reviewed.
5. The foundation documents that were not sent to the expert and that
he or she did not review.
6. Articles and texts authored by the expert.
7. Authoritative literature in the eld.
122 • John McLeish
8. Prior transcripts of the expert in other cases.
This ammunition is material that can be generated in every case with
the appropriate amount of work.
THE “DO’S” OF CROSS-EXAMINATION
The general rules of cross-examination apply to the cross- examination
of an opposing expert witness. Some of the “do’s” of cross-examination
are as follows:
1. Cross-examine softly.
2. Start and close strongly.
3. Ask leading questions.
4. Ask short questions.
5. Use simple words.
6. Use headlines.
7. Ask for facts, not evaluations or opinions.
8. Get one fact straight at a time.
Cross-examine sof tly
You may know the opposing expert by reputation and think he or she
is a biased, side-that-hires-the-expert “hack.” However, the jury certainly
does not know this and the judge likely will not. If on cross-examination
you treat this witness on the basis of the way you feel, you will be the
loser. Remember, you are trying to sell one version of the facts, while your
opponent is attempting to sell another version. Who is the jury going to
buy from– the person who tries to sell in a loud, boisterous, overly aggres-
sive fashion, or the person who tries to sell quietly? If you cross-examine
softly, a number of things happen: you build credibility and trustworthi-
ness with the jury, the witness thinks that the cross-examiner is not so bad
after all and becomes more co-operative, and the cross-examiner ’s oppon-
ent does not get edgy and tense and interrupt you constantly.
Start and close strongly
The rst engagement with a witness can be the most important one.
There are going to be times when you will start with a constructive
cross-examination, that is, a cross-examination to obtain helpful admis-
sions, contribute to the theory of your case or corroborate the favourable
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