CROSS-EXAMINATION OF MEDICAL AND OTHER EXPERTSStephen G. Schwarz and Ane!" G. Farac#Farac# Lane$ LLPR"che%ter$ New &"r'(. Intr"d)ct#"nCross-examining an expert witness is one of the most challenging and exciting things we do as trial lawyers. Nothing is more rewarding than to sit down after an effective examination with the feeling that you have neutralized the opposing expert and by doing so greatly helped your case. But in order to obtain that level of satisfaction thereis much work to do in preparation and developing an effective strategy.In analyzing the challenge we must be honest with ourselves that no matter how smart we are or how much we study we are not going to be able to match the experts level of knowledge in his or her field of expertise. But that does not mean we are not going to try to educate ourselves to the maximum extent possible in the narrow area of medicine! engineering or whatever the specialty is regarding the relevant scientific topic. "or medical witnesses we can read all of the most relevant medical literature articles on the narrow area involved in the case as well as obtain background knowledge from textbooks to help us understand those articles. #e also have our own experts to help us understand complex scientific topics. $sing these resources we can prepare ourselves sufficiently to attack the weak points underpinning an experts opinion. %his article will first discuss some of the basic legal principles involved in conducting an effective cross-examination of an expert. #e will then discuss strategies and techni&ues that we have utilized in the past to attack the opposing experts opinions. 's will be further emphasized below! it is important to look at each cross-examination as a uni&ue and different experience from any of the ones you have done in the past and to utilize some but never all of the strategies and techni&ues that will be discussed. (ess can definitely be more when it comes to cross-examination and length very rarely e&uates to effectiveness. "inally! although both of us have tried a good many cases! and one of us )*chwarz+ had the great opportunity to learn from the other )"araci+! each of us approaches witnesses a little differently based upon our individual personalities and 1comfort zones. In cross-examination like every other aspect of trial practice before a ,ury!you must be yourself and not try to copy someone elses style the way an actor assumes a role. -ou can learn from watching others! but you need to develop your own style in using these strategies and techni&ues in order to make them truly effective. *. Pretr#a! Preparat#"n%iger #oods is a great natural athlete. But he is probably the greatest golfer of all time not because of his natural gifts alone but because of the work ethic that he pairs withit. *imilarly! no matter how good you are on your feet you will never be a great cross-examiner unless you work tirelessly to master all of the underlying facts and sub,ect matter of the expertise of the witness.a..oing your homework%oday it is easier than ever to obtain knowledge thanks to the internet. /xcept for medical experts in medical malpractice actions in state court actions we are provided withthe identity of the expert witness to be called by the opposition. %he internet enables us tofind out almost everything this person has done in a professional capacity including articles written and positions attained. %he internet also provides us with countless options for educational materials on virtually any area of medicine! science or engineering and typically on multiple levels from basic to highly advanced. 's trial lawyers we must take advantage of these tools to learn everything we can within the time frame we have for preparation so that we can ade&uately test the opinions of opposing experts. /very expert opinion has some point of weakness that we can attack. 0ur ,ob in the preparation stage is to find it. "ortunately! we are not alone in this search since we must hire experts ourselves to testify in the very area of expertise of the other sides expert. %his expert can be of great help but the caveat is that we must be well informed before that can happen. If you go and meet with your expert without doing your 2homework first the conversation will migrate to the most basic of levels. 0nly after you have mastered the sub,ect matter can your expert really teach you the subtleties of the topic that will be where the weaknesses of the other expert can be found. 'nd there are always those grey areas! especially in medicine. %here is a famous story of the .ean of 1arvard 2edical *chool speaking to freshman each year and telling them that 345 6 of the information that will be taught to you in the next three years is going to turn out to be incorrect. %he problem is that we do not know which 456.7'reas of uncertainty are where you want to go with experts who testify on direct as if everything in their opinion is black and white and simple. In order to find )and more importantly understand+ those areas there is no substitute for thorough preparation.8959)d+ disclosure%he days of 3trial by ambush7 allegedly went out when the C:(; was amended to add expert witness testimony disclosure as a pretrial re&uirement. 1owever! the statutes intent is certainly not universally fulfilled by what each side provides to the other. %here are many instances in which the disclosure served is inade&uate to allow for appropriate preparation. In such instances! a threat of a motion followed by a motion to compel is essential. 'lthough many trial ,udges are less than receptive to such motions! they can be effective in that even their threat often leads to better disclosure. 'nd there are cases in which relief has indeed been granted. *ee Syracuse v. Dio! )9D>=+.%here are other areas of impeachment where you can attack the witness after an untrue answer is given. %hese include prior inconsistent statement in either a deposition transcript or published article authored by the witness. 'n area of impeachment that is fre&uently used with expert witnesses is bias! pre,udice and interest. %hese all go to the money a witness is making as well as a tendency to always testify for one side or the other. "or instance! 0Doctor, you have testified in 12 trias in your career and 13 times it was for the paintiff, correct450r 0Doctoryou have been paid 678,888 to provide your opinion to the 9ury today, is that correct45-. Strate. #n Appr"ach#n Cr"%%-E/a0#nat#"n'bove we discussed the tools that you have available to use for cross-examination. But what distinguishes good from great cross-examiners is knowing which tools to use in which situations and not trying to always use all of them at once. %here are a wide varietyof strategies and tactics you can utilize in cross-examining an expert witness. #e have setforth some of the common ones in the sections below. ;emember! however! that you will rarely wish to use all of them with one witness. 0nce you know all of the different areas you want to address in your cross-examination )the 3chapters7 described above+ it is also important to arrange the chapters in the best possible order for effectiveness. *ometimes order is self-evident because one 8issue is a prere&uisite of another and must be done first. 1owever! you should always try to follow :rof. Irving -oungers sage wisdom 3*tart on a high note! end on a high note7. %his strategy is important for both the ,ury and the witness. If you score points with your first chapter you engage the ,ury and get their attention for what is to follow. Conversely! if your first efforts fall flat the ,ury is likely to begin to tune you out entirely. In addition! regardless of how many times an expert has testified all witnesses have some nerves going into cross-examination. -ou want to build on this insecurity and not allow them to gain confidence by deftly fending off your very first attack. /nding on a high note ,ust makes sense! as the last part the ,ury hears and is likely to best recall is among the most effective attacks you have. a.'ttacking the factual basis of the experts opinion'lthough the expert has received training you never did and has practiced in a field inwhich you have never practiced! there is one thing you do know much better than that expert -the facts of your case. Interestingly! the more experts testify and become familiarwith the courtroom setting the more lax they become in learning the facts of the case assuming that experience and superior knowledge will get them through. #hen you have undercut the facts presented by the expert as the basis for his opinion it allows you to begin your discussion of the experts testimony during closing with the lineG 3/veryone isentitled to his own opinion but .r. *mith is not entitled to his own facts7. 'ttacking an expert on the facts underlying his opinion allows you to avoid the fight on the technical stuff that may confuse the ,ury and makes your ,ob easier. If the ,ury finds consistently with your version of the facts then they can essentially disregard the experts opinion which is based upon different facts and never get to the more troublesome areas of science where ,ury comprehension is more difficult.%here are fre&uently cases where experts provide opinions based upon facts that are inconsistent with those in the record. In a recent trial involving a case where a patients leg came off of the operating table during the surgery which resulted in a permanent nerve in,ury! the defense expert testified on direct that the hospital staff did not depart from the standard of care and took all proper precautions to protect the patient. 1owever! on cross the witness was confronted with the actual testimony from the staff in which it was clear that no one really had a recollection of what was done. In the end the expert was left with an opinion which he claimed to be based upon the fact that the hospital had policies and he assumed that all of the staff must have followed those policies - in essence! an inadmissible opinion.b. Narrowing the areas of disagreementIn even the most contentious cases the areas of disagreement between experts may actually be &uite small. By narrowing those areas for the ,ury you can make their choice 9between accepting one expert and re,ecting the other easier by boiling the controversy down to its simplest elements. In a recent case the issue was how an infection had occurred to the area of the patients larynx. :laintiff argued it was caused by the manner in which the NN tube was inserted by a nurse at the defendant hospital. %he defense theory was that simply the fact that the tube was in place for a period of time caused an erosion of the esophagus and resulted in something referred to as 3NN tube syndrome7. 'lthough these two theories sounded very different! they were really &uite similar. 't the outset of cross-examination the issues were narrowed with the following &uestionsGYou a(ree that there was some dama(e to the mucosa in the aryn: or postcricoid are4%his aowed the norma bacteria in paintiff;s upper -8=D )9st .ept! 9DD?+. %hus! presentation of articles which contradict the experts conclusion as to what the literature shows is appropriate and can be effective in discrediting that conclusion. f.Contrasting opinions from treating physiciansIn many medical cases the ,ury is confounded by being presented with opposing opinions from two &ualified experts. In those cases the ,ury looks to the treating physicians who testify! whom they perceive as neutral to the controversy! to help them break the tie and decide which theory is most compelling. "or this reason it is always helpful to find areas where testimony or reports from the treating physician contradict what the expert is telling the ,ury. %he more of these that can be presented! the more the expert can be made to look like he or she is not being fair or honest in his or her assessment. "or example! in the NN tube case mentioned above! the expert was confronted with the following &uestions on crossGDid you have a chance to review Dr. +ier;s tria testimony before you testified4. want to pay you some of Dr. +ier;s testimony to see if you a(ree with it4>%estimony video cip payed?12Doctor woud you a(ree that this thin one or two ce thick mucosa coud never be accuratey described as e:tremey durabe and impervious to in9ury4.sn;t that what you tod this 9ury on direct413g. Contradicting testimony of another adverse witness's mentioned above! when you have the expert on the stand you can sometimes use him or her for your own purposes as long as your &uestioning is within the scope of the direct and the opinions given. *ometimes you can actually get the expert to contradict thetestimony of a witness in the case presented by the same side. "or example! in the case we have been referring to about the NN tube in,ury! the nurse who inserted the tube and the nurses supervisor both testified prior to the experts appearance that they were never taught or learned that improperly placing NN tubes in the esophagus could cause esophageal perforations and serious in,ury. %his was blatantly incorrect. 1owever! the expert had not been prepped for this at all and after a foundation was laid by reviewing with the expert numerous medical literature reports of esophageal in,uries from NN tubesand how any well trained practitioner should always be aware of this possibility when inserting a tube! the testimony of the two witnesses was shown to the expert. 1e had no choice but to agree that they were wrong and poorly trained if that was their position.%his can also be done when the other side has more than one expert. If they are not in agreement on any significant points! it is good to confront the expert with the discrepancies. h. ;eviewing and using information in the experts file'lthough most experts are smart enough not to leave too much in their files that couldbe utilized on cross-examination! it is always worth the time to look. It could be a letter from counsel that can be used to support the argument that the expert knew what his opinion would be before referring to any of the facts. %here also may be compensation information there that contradicts what the expert says he is being paid. %here are also experts that bring no file with them and sometimes this can be discussed with them to plant a seed with the ,ury that they avoided bringing their file for a reason. i.Compensation! bias and bad acts%his topic is left to last because it is typically the least effective for use by plaintiffs inthis era. It is usually difficult to make the defense witness look like a shill unless he or she is being paid orders of magnitude over what the plaintiffs expert received in compensation. *imilarly! most expert witnesses have testified before and pointing this outrarely scores a lot of points. Because of ,urors general skepticism toward plaintiffs today these attacks fre&uently work much better when used on plaintiffs experts than on defendants experts. *ome ,urors who come in with a negative feeling about plaintiffs generally only need a little help to substantiate their negative impression and give them cause to vote for the defense. %hese types of attacks will sometimes be all that is needed to convince a ,ury not to believe the plaintiffs expert. 14"ew attorneys will put an expert on the stand that has a lot of collateral baggage. If you get into the rare situation where such an expert is before you to be cross-examined always beware of the collateral matter rule and how you will handle it if the expert deniesthe prior bad act. 1. Techn#2)e% #n Cr"%%-E/a0#nat#"n0nce you have plotted your strategy there are techni&ues that can be used to help you execute that strategy effectively. Below are a number of techni&ues to keep in mind.a. %he rule of probability in human behavior"or a truly effective cross examination the examiner must be knowledgeable and aware of common principles of human behavior. In a trial you will be called upon to instantly analyze and react to a witnesss use of a certain word! phrase! or obvious body language. %he examiners &uestions test what the witness is saying against widely known common experiences. -ou do not have to have direct knowledge to ask the witness certain &uestions since common human experience provides us with a probable answer.0@A You ove your son45 or0@A You were upset after the accident, weren;t you45.%he famed attorney Merry *pence in conducting a cross-examination of an incarcerated witness who had made a deal with the prosecution to testify against the defendant demonstrated in a very sympathetic way all of the pleasures of life that the witness was being deprived of by being in ,ail leading to his final &uestionG0@A . suppose you woud do anythin( to (et out of 9ai.5"inally! in a case where the witness made a long and careful inspection of a vase in the Courtroom and then dramatically testified that that was the sub,ect vase! the cross- examiner elicited the fact that there were thousands of these vases! and that the sub,ect vase did not have any identifying marks upon it leaving the ,ury to the ultimate conclusion that the careful inspection had been nothing more than a performance. 15b. %echni&ues that work and those to be avoidedi. .ont always expect to confine the witness to a 3yes7 or 3no7 answer.ii. 'void asking the Court to admonish the witness.iii. 'sking the Court to strike testimony as non-responsive protects your record but does very little to erase it from the ,urors minds.iv. Net the answer to your &uestion. .o not be diverted.0. am sorry, . am not makin( mysef cear, my =uestions isBBB50*e wi dea with that sub9ect in a moment, pease answer my =uestionBBB5 0+r. *itness, are you reuctant to answer my =uestionBBB5v. If you do not get an answer! repeat the &uestion! then reverse it.@A'eriphera nerves are inherenty eastic4&A*e, nerves come in many types and varieties and it is difficut to characteriCe them in simpe terms.@ABut my =uestion doctor was specific to periphera nerves and that theyare inherenty eastic4&A*e in some studies D.@ASo doctor, then it must be true that periphera nerves are ineastic and ri(id, is that your testimony4&A*e . certainy woud not a(ree with that, they are indeed eastic in most cases.16vi. .ont let the witness tell hisLher story or introduce new matter and new evidence. %he witness will be given a good deal of latitude in answering the &uestion! but the answer must be addressed to the &uestion. 't some point it is proper to interrupt the witness and to confront the witnessGvii. Peep your eyes on the witness during cross-examination. Be alert to what the witness says and incorporate helpful language used by the witness intoyour &uestions that follow.viii. 'void rigidly using outlines during cross other than as a checklist.It is helpful to write out &uestions and to make outlines into chapters and topics but do not become a slave to your outline and miss opportunities provided to you in an answer to one of your &uestions. "ollow the leads they give you and return to your plan afterwards.ix. .ont allow yourself to be overwhelmed by documents and details.*tay focused and organized. In order to do so! you may have to reduce your cross-examination to what is important and not include everything that is possible to confront the witness. /liminating some of the less important areas will enhance your effectiveness and keep the ,ury much more attentive.x. $se of hypothetical &uestionsG #here you are attempting to get opinions from the witness! use of hypotheticals consisting of assumed facts in evidence is a useful way to elicit the opinion.xi. .o not focus on the meaningless and petty inconsistencies.xii. ;ead the ,urors! but do not avoid important areas because they appear to be tired or bored17-ou must always be cognizant of how what you are doing is playing to the,ury. 1owever! you also must trust your instincts and your superior knowledge of all of the facts that will be presented. *ometimes a ,uror after a trial will say that your cross was too long but then recite exactly thepoint you wanted to make late in the cross as important to them in discrediting the witness. 'fter they have made up their minds that the witness is not to be believed then everything after that is overkill. But the problem is that you never know when that point is reached or whether it is being reached at different points by different ,urors.18