As you may have gathered from reading our blog posts, proving the facts necessary to win a personal injury case often depends on the testimony of expert witnesses. Experts can be the difference between a jury deciding a contested factual issue in your favor or against you.
Because traditionally both sides in a case will have their own experts testifying at trial, it may be interesting to know how attorneys go about questioning or examining experts during a trial.
The techniques, strategies, and questions used at trial will differ depending on whether your attorney is questioning your witness—who is presumably favorable to you—or the other side’s expert, who may be a “hostile witness.”
Questioning Friendly Expert Witnesses
Questioning an attorney’s own expert witness may seem easy. After all, the expert is expected to testify to your advantage and provide testimony that is beneficial to the case. There is an art to questioning an attorney’s own witness in order to make sure that his or her testimony is as effective as it can be.
The initial step is making sure the jury knows the qualifications of the expert. Often, the expert’s education, experience, titles, previous awards, or certifications are reviewed in trial. Usually however, an expert’s credentials are sufficient for most juries to accept him or her as qualified to testify.
Experts may be doctors, scientists, mechanics, or any other professionals. They often are not lawyers. That means that they may not know how to relate their opinions or how to explain difficult scientific or medical concepts to a jury. It is up to the attorney questioning the witness to do that.
That means that an attorney must be skilled at taking complex concepts that are explained by the expert, and putting them into common sense terms that regular people on the jury can understand. You will often hear an attorney ask an expert, “so what you are saying is…” or “So this means that….” In an effort to rephrase or summarize complex testimony into simpler terms.
This can also be done by using charts or diagrams—for example, a picture of the human spine can help a jury understand what an expert spinal surgeon is saying.
Cross Examining Hostile Witnesses
Questioning the other side’s witness can be much more difficult. That expert is hostile to your side, and now the attorney must try to show a jury why the expert’s opinion is incorrect, or else, why the attorney’s own expert should be believed over this one. The attorney must do this, all while discussing facts and opinions that are within the expert’s realm of expertise.
The first approach that attorneys use is to try to discredit the expert in the eyes of the jury. This does not necessarily mean saying the expert is not an expert, or that the expert is not intelligent or knowledgeable. Rather, it may mean that the expert is an expert in a field other than the one being discussed.
For example, a doctor may be a highly qualified expert. However, that does not mean the doctor is qualified to give opinions on what the human body does during a car accident, which has to do with biomechanics. A police officer may be very qualified to talk about law enforcement issues. That does not mean that the officer is an expert on how large venues control oversized crowds that get out of hand. That may require someone with event security expertise.
Another common way that attorneys question hostile witness experts is by showing the expert’s bias. Experts are supposed to give their testimony only on the facts of the case, or based on their scientific knowledge. They should not let personal relationships with parties or attorneys infect their testimony.
Although most all experts are paid for their time testifying or reviewing the case, and are entitled to payment, that payment should not influence their testimony.
Many experts are used over and over again by the same law firms. Many experts testify repeatedly for only defendants. That repeated testimony may result in the expert being paid a significant sum of money by a law firm or a party to a lawsuit as the expert is called on again and again in different cases. It is fair to ask whether the expert is favoring a party based on the expert’s own financial interests, and questions that go to this bias can be used in cross examination.
Questioning Methods and Data
Another way that a hostile expert’s testimony is impeached is by questioning the data or methodology used by the expert.
For example, an expert doctor for the defendant may have only looked at a victim’s medical records, while the victim’s own doctor has treated the victim for many hours, in person. An accident reconstructionist’s expert opinion can be attacked if the expert has not taken into account all of the testimony given in a case about how the accident happened.
Where parties have differing recollections of an event, an expert opinion based on only one side’s version of the facts, can be attacked.
The Expert’s Background
There may also be things in the expert’s background or history that can be used for impeachment. For example, an expert may have written a scholarly article many years ago supporting an opinion different than the one he or she is giving in trial. The expert may have studied scholarly manuals that have different opinions than the one the expert is giving.
Becoming Educated in the Expert’s Field
Of course the best technique is for the attorney to make sure that he or she understands the technical or scientific nature of the expert’s testimony, in order to be ready to counter it. It is not unusual for an attorney to become highly educated in whatever science or mechanics or medicine that is at issue in the case, in order to help decipher and attack the opposing expert witness’ testimony. In many cases, the attorney’s own expert can even be used to help the attorney prepare to cross examine the other side’s expert.
Attorneys must be skilled at handling expert testimony in order to win a personal injury trial. Contact Brill & Rinaldi today about a free consultation if you are injured as a result of the negligence of someone else.