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effective techniques every attorney should develop and use when cross examining an expert include: controlling the witness, using the “voice of reason,” and asking low risk open-ended questions. TELL, DON’T ASK The most fundamental technique an attorney must develop to effectively cross examine an expert is the ability to maintain control of the expert both through …
Cross-Examination Questions (and Answers) ... advertising that a skilled attorney could use to impeach an expert witness. On the other hand, the mere fact that one advertises is not objectionable. Advertising, in and of itself, is not the basis of being viewed as a “hired gun.” That results, instead, from the
Dec 08, 2021 · However, you will still have to cross examine the other expert on your own. As the lawyer, it is up to you to evaluate strategy, develop themes, and present the case. In preparation for your cross examination, nothing helps an attorney prepare like …
Even if the witness doesn't get to elaborate on cross-examination, the defense attorney can usually provide that opportunity on re-direct examination. Example. Jesse James is on trial for armed robbery. After witness Kit Carson testifies and identifies James as the robber, defense counsel cross-examines him.
The framework for the effective cross-examination happens long before trial during the expert's deposition. ... This includes asking the expert during the deposition the exact opinions that he/she intends to give at trial, the basis for those opinions and the assumptions made in connection with that opinion.Aug 25, 2021
The general rule is to compel the witness to say yes or no after every question. Example: “Is true to say that you were present at the house of X during the murder?” to this question, the witness either answers yes or no. The ability to use a leading question enables the cross-examiner to control the witness.Oct 29, 2020
The three most often used methods to impair witness credibility include prior inconsistent statements, character evidence and case-specific impeachment.Prior inconsistent statements/conduct.Character evidence.Case-specific impeachment.Consider when to impeach.
Document examiners must be able to draw correct conclusions about questioned documents and present the evidence concisely and clearly in a court of law. ... Attorneys who have cross-examined an expert in court or deposition are powerful witnesses to an expert's abilities.
In civil and criminal cases, the judge has the power to summon witnesses as court witnesses and examine them. They can be cross-examined by both the parties as provided in Section 165, Evidence Act. Such cross-examination is not restricted to the points on which he has been examined by the court.Aug 1, 2020
RECAPREFRESH YOUR MEMORY.SPEAK IN YOUR OWN WORDS & SPEAK CLEARLY.APPEARANCE IS IMPORTANT.DO NOT DISCUSS THE CASE.BE A RESPONSIBLE WITNESS.BEING SWORN IN AS A WITNESS-STAND TALL & RAISE YOUR HAND.TELL THE TRUTH & DO NOT EXAGGERATE.LISTEN CAREFULLY TO AVOID CONFUSION.More items...•Feb 5, 2020
So, again, the way to discredit a witness is to bring up prior inconsistent statements that they made. The way to discredit a witness is to call other witness or cross-examine other witnesses and bring up key points about your main witness's testimony and impeach them through over witness statements.
Under common law, a witness may be impeached by proof the witness has contradicted him- or herself through evidence of prior acts or statements that are inconsistent with testimony given on direct examination.
A technique to discredit the witness is to build up his or her experience in other areas where the experience is substantial, and then ask the expert to agree that those other areas are not at issue in the present case.
10 Questions You Need to Ask before Hiring an Expert WitnessWhat are your qualifications? ... What experience do you have testifying in litigation cases? ... Do you have any conflicts with this case? ... What makes you the best expert witness for this case? ... Do you have references? ... Have you ever been prevented from testifying?More items...•Feb 25, 2016
Rules about expert witnesses are set by state and federal rules of evidence, depending on whether your case is in state or federal court. According to the Federal Rules of Evidence, a qualified expert witness is someone who has knowledge, skill, education, experience, or training in a specialized field.Feb 24, 2014
In the federal courts, judges determine the credibility of expert witnesses in a pre-trial Daubert hearing. See Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993). In considering witnesses' qualifications, judges may consider information that is not admissible as evidence.
Finding a similar case in which the expert gave conflicting expert testimony is effective ammunition for cross-examination. It is also important to identify and read the expert’s prior writings. Many experts maintain their own webpages and draft a number of articles that can be used during cross-examination.
As stated by the American Bar Association, it is absolutely critical that the cross-examiner “ box in ” the expert at the deposition. This includes asking the expert during the deposition the exact opinions that he/she intends to give at trial, the basis for those opinions and the assumptions made in connection with that opinion. It is also helpful to sum up the deposition with catch-all questions such as “other than the opinions you have already expressed today, are there any other opinions that you intend to give at trial?” This allows the cross-examiner to exploit any changes from the deposition testimony and also to explore any new or nuanced opinions that the expert did not disclose at the deposition. Also, once the deposition is over, it is important to master the deposition testimony because it is important to highlight any differences between the deposition testimony and the testimony given at trial.
One way to build upon the cross-examiner’s theory is through the use of cross-examination by a collateral attack, focusing less on the case at hand, and more on the expert and his potential biases. The experts’ financial bias is a common ground for a collateral attack. The expert is, after all, providing his opinion on behalf of a party for a fee. This financial bias can also be shown by the number of cases in which the expert has testified, the number of Courts in which he or she has testified and also the areas of expertise which he or she has claimed to be an expert. At bottom, this line of questioning is to show that the expert is not an objective expert simply teaching the jury the subject matter as if he is a professor in a classroom, but rather a hired gun for opposing counsel to mislead the jury.
Experts are smart. Really smart. And, with few exceptions, the expert will be far more experienced in the subject matter than the attorney asking the questions. It may seem rudimentary, but it is critical that the attorney cabin the possible responses to the questions to be “yes” or “no” questions .
Some expert testimony can be meticulous, highly technical and, to some jurors, downright boring . In fact, there are a number of reported cases where jurors have even fallen asleep during expert testimony . That is why it is crucial to pick the three or four best cross-examination points and stick to them. An overly long and confusing cross-examination runs the risk of boring the judge and the jury and, perhaps most critically, could end up hiding the most important points of cross-examination.
Experts typically do not have personal knowledge of the facts of the case. Rather they are relying on facts that are provided by the hiring attorney and the experts generally are basing their opinions on the assumption that those facts are true. Since many experts are qualified in their field, and, at least have knowledge far superior to the cross-examining attorney, it may be easier to attack the facts that the expert is assuming to be true, rather than a deep analysis into his area of expertise. This is particularly true if the expert’s track record and qualifications are beyond reproach. Also, if the particular expert is very qualified and likeable, it points the finger at the opposing counsel and his client for feeding the expert facts that are inaccurate. Ultimately, if the expert is shown to have relied on facts that are not true, their opinions may no longer be credible or reliable.
In every case involving expert testimony, one cannot discount the need for preparation. Preparation includes meeting with the opposing expert and identifying areas of attack, from the scientific basis for the expert’s conclusions, to best practices, to relevant studies in the field, to hands on experience.
Expert opinions are based on facts that are case specific. Whether or not CPR was administered to a child by an untrained but very strong man can impact the assessment of when or how the child’s ribs were broken. Whether the kitchen contained a slow cooker with a faulty electrical cord may impact the potential for an accidental fire. The expert’s opinion is limited by the facts as known to the expert. Make certain any comparisons are fair ones.
By definition, experts are brought into a case because their knowledge and skillset can assist the trier of fact in ways that lay witness testimony cannot. As enumerated in Rule 702 of the Federal Rules of Evidence, experts are to use their “scientific, technical, or other specialized knowledge” to help the trier of fact in understanding the evidence or determining a fact in issue.
Expert testimony must also be based on sufficient facts and reliable principles and methods.
Ideally, the case theory should intertwine with all aspects of the trial. The direct examination may begin with more scientific, complex ideas, but once the expert thoroughly explains and breaks down his opinions, the testimony should ultimately mirror the attorney’s case theory as told in an opening statement or summation. Experts should be able to reiterate the case theory, while also maintaining their own voice. If a direct examination is successful in helping the jury understand the scientific or technical facts of the case, then the jury should be able to apply those facts when deciding the ultimate issue. By summarizing the testimony at the conclusion of the direct examination, the expert is showing the jury a new point of view while still emphasizing the theory of the case.
While the cross examination of a witness is often viewed as a climatic moment in a trial, the direct examination of a witness, particularly an expert, can be of equal, if not greater importance to the outcome of a case. Knowing how to effectively conduct a direct examination of an expert witness can set the tone for the entire trial.
Depending on the practice area, an expert may testify as to formal education, work background, on-the-job training, or other credentials. It is helpful if an expert has both academic and practical experience. It provides a more well-rounded picture of the expert’s background. While not a necessary tactic, it can be beneficial to humanize ...
Likewise, an expert may base an opinion on facts or data that the expert has been made aware of. Or that he has personally observed. An expert need not disclose all facts and data on which the direct testimony relies. However, the witness may be questioned about those facts on cross examination. If an expert’s opinion is based on questionable data ...
The main purpose of an expert is to help the jury better understand the facts at issue by explaining technical information in an easily digestible format. To help your expert achieve this goal, the direct examination must comprehensively flush out any complex or confusing testimony.
The Minnesota Multiphasic Personality Inventory (MMPI-2) and the Rorschach Inkblot Test are the two instruments most frequently used for the evaluation of adults in child custody cases. Coping with Psychiatric and Psychological Testimony, David Faust based on the original work by Jay Ziskin, Oxford University Press, 2012. There are issues in using these tests. Most importantly these tests do not test parenting ability. There is almost always insufficient scientific foundation to make a direct connection between the results on the tests and parenting. The information gained from the tests are indicative of what characteristics others have that have tested similarly, but it does necessarily mean the party has those characteristics. Further, most people being tested as part of a custody evaluation present themselves in a more favorable light and test with a level of defensiveness. Those going through a divorce tend to be more anxious, depressed, and paranoid. This could affect the validity of the test. It is not a good idea to attack the testing because the expert knows much more about the testing and will be able to explain the testing measures. However, there are inherent flaws and limitations in the testing that should be brought to the Court’s attention.
The most helpful tool to cross examining an expert is to hire your own expert to help you identify the flaws and weaknesses of the other expert’s opinion. Your expert can help you prepare your cross examination questions or even attend trial as an expert to call into question the other expert’s report and to explain why a different conclusion should be drawn using the same information. Having another expert to rely upon can be invaluable in effectively cross examining an expert.
In most cases, the expert involved may not have all of the information and evidence in a case. If you can prove evidence in a case that if considered by the expert would change his or her opinion, you may be able to get the expert to acknowledge that if they had that information they would have drawn a different conclusion. This can be very persuasive to the Judge.