As an expert, your performance during cross examination is crucial as the opposing attorney’s aim is to undermine you, your testimony, and your hiring attorney’s case. An adept cross examiner will try to get you to say things in front of the jury that supports their story while casting doubt on your opinion.
For testifying experts, the experience of going from direct testimony to cross examination may initially feel jarring. But, not to worry, there are strategies you can use to prepare to change testimony gears. Here, we discuss seven tips for effectively managing cross examination as an expert witness.
1) Listen Carefully, Then Respond
Remember to listen completely while the opposing counsel asks you a question. Let them finish before you formulate your answer—the tail end of a question may completely change your answer. If any part of their question is not clear to you, don’t hesitate to ask them to clarify or help you better understand the question.
Rushing to answer a question before understanding it can lead to trouble. You may accidentally not answer the question or respond with something off-topic. This can make you look evasive or even uninformed to the listening jury—and consequently, hurt your credibility.
2) Answer Only the Question Asked
This might sound obvious, but answer only the question you were asked. Often an expert who knows much more about a subject than the attorney cross examining them can make the mistake of “enhancing” the question. As an expert, you may think of six permutations of the question and answer with more complexity that covers all of the questions that come to mind as you hear the lawyer’s question.
Answer only what was asked, not what you think opposing counsel asked or what you think should have been asked. Answering questions you weren’t asked could unintentionally give the cross-examiner ammunition to discredit you or the case down the road.
3) Don’t Be Surprised by Leading Questions
No doubt you’ve heard the famous phrase: “Objection your Honor, counsel is leading the witness.” This, however, only applies during your direct testimony. Federal Rules of Civil Procedure (FRCP) 611(c) bans leading questions during direct testimony, “unless necessary to develop the witness’s testimony.” Rule 611(c)(1), however, expressly authorizes leading questions on cross examination. Leading questions are allowed so that counsel can ask a variety of questions to test and probe an expert’s statements given during direct testimony.
If you’re asked a leading question, such as “And the standard of care is X, Y, and Z, is that correct?” Think it over and if you know it is a correct statement say, “Yes.” Keep in mind, however, that cross examining lawyers design their questions to get you to answer yes or no. They want you to use you to confirm a fact that helps their story—full stop. Be aware that any elaboration from you might reduce the impact of their point or raise doubt about it in the jury’s mind. If you need to add a few words for context or to avoid supporting untruths or inaccurate implications of a “yes or no” answer, go ahead. Make your point narrowly and concisely. Long-winded answers may contain a nugget that backfires on you.
4) Is There an Objection in the House?
FRCP Rule 611(b) outlines the scope of cross examination. This rule allows your hiring attorney the opportunity to object during your cross examination. If a cross examination question goes “beyond the subject matter of the direct examination and matters affecting the witness’s credibility,” counsel can object based on this rule.
After listening to a question, pause to consider if it is outside the scope of your direct testimony or probative of your credibility. Watch how your hiring attorney reacts to the question. Wait if you sense they may want to object or are thinking it over—don’t answer the question quite yet. You may be instructed by the judge to not answer the question if the objection is sustained.
5) Making Concessions When Appropriate
At times, you will want to make appropriate concessions during the cross examination. If you resist conceding a point that is obviously true and accurate, you run the risk of coming across as lacking honesty and impartiality in the eyes of the jury. These attributes are the hallmarks of trusted experts. As such, you must take lengths to preserve them during cross examination.
Making concessions quickly also prevents counsel from asking you a long series of follow-up questions. Choose wisely before you dig in and decide not to concede on a clear fact or question.
6) Keep Calm and Carry On
Cross examinations are no picnic. You might feel like your research, expert opinions, and standing in your peer community are under attack. Stress levels may skyrocket as opposing counsel peppers you with questions about your background or expertise.
The best advice is: Keep Calm and Carry On. Don’t react to what you may perceive as insulting questions. Avoid taking things personally. Remember the cross-examiner is trying to get under your skin. That’s their job—to rattle you by catching you in a mistake or misstatement. It’s all about pushing you down so their story goes up in the jury’s perception. Try to keep a calm demeanor in this difficult situation. Calm, neutral experts make the most credible witnesses.
7) Stick to the Facts
Opposing counsel will try to go after you technically, as well. They’ll try to get you to opine on what the data suggests or a hypothetical theory they pose. They might ask you to agree that your methodology was an outlier or even problematic.
Avoid these cross examination pitfalls by sticking to the facts. Defend your methodology with scientific best practices and simple explanations of its soundness and accuracy. Cite others who have used this methodology in similar scientific inquiries. Reiterate your findings as articulated in your report, and don’t stray beyond into hypotheticals.
A “stick to the facts” approach along with the six other tips we’ve discussed will provide solid foundation to navigate the challenges of cross examination.
