Keys to Dismantling an Expert Witness

Television and movies have colored the opinions of millions of people regarding the inner workings of a trial and the techniques routinely used by lawyers. In truth, a director of a television show has a limited amount of time to hold an audience captive and keep viewers tuned in. Although many attorneys would do well to abridge their own, often long-winded presentations, it's just not possible to perform meaningfully in a few short minutes.

Usually, a lawyer in a movie comes out breathing hellfire from the opening salvo of a cross-examination to the moment he sits down four minutes later. This just isn't practical in the real world.

The most successful cross-examinations begin innocuously enough. Time and pace must be cultivated to permit the damaging information to mount so the effect is far more compelling. Instead of trying to take out the witness immediately, the witness must be carefully set up to take the fall when the time is right.

To accomplish this, the lawyer must first build a formidable foundation, which is created by anticipating what the witness will say and by cutting off the witness' wiggle room when questions become more probing and precise. After securing agreement with seemingly non-controversial facts, the witness can be locked into a position, which will later be attacked. The cross-examiner can then use the witness' own words and admissions when he or she moves in for the kill.

Here's an example, defense experts routinely testify that a plaintiff's herniated disks were not sustained as a result of the accident but instead by a degenerative pre-existing condition. Assume, when reviewing the expert's disclosure you learn that the witness failed to review a particular medical record or film. In truth, the record doesn't even need to be that critical to the case. With a careful foundation in place, where the witness admitted repeatedly that when treating a patient all records and films must be reviewed to allow the practitioner a full understanding of a patient's medical condition. It can prove particularly deadly; when it is uncovered that such an oversight occurred prior to the expert formulating an opinion on the case on trial. The bigger the buildup, the more dramatic the fall and it is surely something the jury will not forget during deliberations.

Often the point, which may take thirty minutes to create, a suitable foundation for, could have been handled during the opening question of a cross examination. "Isn't it a fact doctor that you never reviewed the records of Dr. Smith?" However, by the time the cross examiner sits down, the effect of that solitary question will be just another drop of forgotten testimony in a sea of lost inquiry.

My advices to attorneys, take your time, set up your opposing experts and take them down hard. My advice to clients: Be patient with your attorney. Television directors are not lawyers for a reason.