Trial Advocacy: Cross-Examining Expert Witnesses
by Tim Bukher
As part of my effort to share tips with fellow boutique firm and solo-practitioners, the following is the first in a series of tips for trial advocacy. I will tentatively title this series, “Don’t Fear the Court Room” as many of us must admit that our early forays into trial brought more than a few trepidatious pangs.
Most cross-examination methods are analogous to walking the witness out to the edge of a tree branch (the tree representing their argumentative position) and then giving that branch a good shake. This technique, which works better with expert witnesses (“experts” in their respective fields and probably experts in the sense that they find themselves in the courtroom as often as do lawyers), is analogous to getting the witnesses to cling tighter and tighter to the trunk only to finally show him that he was climbing entirely the wrong tree.
The trick is to play on the expert’s desire to display his expertise to the jury by “yessing” him through a long series of questions which subtly build up the contrary side of his ultimate conclusion. Once you have helped him lock himself to that position, it is a simple matter of casually revealing how such a position is entirely contrary to the other party’s conclusions.
Note: Do not fear objections! This video also serves as a good example of how the other party will attempt to interrupt your narrative with a constant stream of objections. Such disruptions tend to freeze many a counsel up as they pause their narrative to argue with the other side. If you are in the middle of a nice little narrative, it is best to keep your response to the objection to one or two words — keep that incredulous look on your face — and let the judge overrule them as they come. Sticking to an entertaining/interesting narrative for the jury is far more important than getting into a side tiff with opposing counsel!
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