Cross Examination and Other Perils
Many aspects of forensic work are recognized as stressful (1), but the one that traditionally raises systolic blood pressure in even the most experienced expert witness is the prospect of being cross examined by an experienced attorney. This pool of experienced cross examiners can sometimes include attorneys who hold Ph.D. or M.D. degrees, as well as a law degree.
Why so daunting? Because the experience contains a devil’s mixture of the worst sorts of possibilities: shame, humiliation, psychological nakedness, and exposure in a public setting; being made to look foolish, incompetent, or ineffective; being revealed as having made some terminal blunder you did not even anticipate. However, perhaps the worst part is the element of surprise.
From malpractice cases we learn that patients can tolerate significant amounts of pain and dysphoria unless it takes them by surprise. Surprise turns the ordinary patient into someone fearful, then angry, then paranoid and externalizing, then litigious; those dominos fall in line with predictable regularity. Similarly, although direct testimony should be carefully prepared in collaboration with one’s retaining attorney, cross examination is a wild card—almost always a surprise. Even in those contexts in which the expert has been deposed—and thus derives from the deposition questions a sense of where the opposing side is going, and what appears to be their theory of the case—there is in the cross examination always the possibility of attack from an unexpected quarter.
From another viewpoint, cross examination constitutes an excellent yardstick for the expert’s competence, preparation, and ethical conduct. Response to cross often demonstrates the depth of the expert’s understanding of the core issues in the litigation. I have elsewhere suggested that the ultimate ethical test for the expert is honesty on cross, because it is there that the limits of one’s opinion and the concession to opposing views must emerge (2).
The following sections attempt to address these concerns by increasing understanding of the process and fostering coping skills. For instructive purposes, in all of these examples the expert is assumed to have come to a valid opinion, based on case data and free from bias.
PREPARATION
Despite the often unpredictable nature of cross examination there are many steps that may be useful in preparing for it (3,4). The first is, of course, a thorough knowledge of the case. This approach is not limited to knowing the issues being litigated. Names, dates, and sequences of events should be pinned down and outlined for quick reference. You may find that listing a table of critical dates and events on the cover of your case folder is a helpful step, allowing you merely to glance down at the folder to refresh your memory of these key points. It is extremely useful
to have at hand a charted time line, prepared by you or by the retaining attorneys or their paralegals. Not only is this helpful in avoiding errors of sequencing but it may serve as a useful bit of demonstrative evidence, blown up and used to illustrate the point for the jury. Even if such errors are not relevant to your testimony, when they occur about basics in the case, they may be exploited with great dramatic emphasis on cross.
to have at hand a charted time line, prepared by you or by the retaining attorneys or their paralegals. Not only is this helpful in avoiding errors of sequencing but it may serve as a useful bit of demonstrative evidence, blown up and used to illustrate the point for the jury. Even if such errors are not relevant to your testimony, when they occur about basics in the case, they may be exploited with great dramatic emphasis on cross.
EXAMPLE:
An emotional injury case from botched obstetric surgery:
CROSS-EXAMINING ATTORNEY (HEREAFTER CEA): Doctor, you have written about the necessity of an expert obtaining a thorough knowledge of the database, is that correct?
EXPERT: Yes.
CEA: When was this couple married?
EXPERT: Although I do not recall that date, I will attest under oath that that fact has nothing whatsoever to do with any aspect of my opinion in this case.
Here the attorney first quotes the expert’s own writings—a common ploy discussed later—and then attempts to show that the expert did not follow his or her own advice or is revealing a contradiction. This impeachment effort is attempted by asking for a detail both in the more remote past and one that it is likely the expert would not recall. The expert responds to this approach by first acknowledging that he or she does not recall—the truth—but does so in the form of a subordinate clause, “Although…”. This forces the attorney to allow the rest of the answer to follow, lest the attorney be seen as interrupting the witness. Had the expert merely said “I don’t recall,” the next query, likely fired before there were any chance to explain, would be “So you don’t follow your own advice” or some such line. The expert goes on to point out the irrelevance of the datum in a very detailed and complete manner, thus both suggesting that the attorney is trying to distract the jury and also encouraging the attorney the drop that line of questioning lest he or she be seen as trying to mislead the jury with irrelevancy.
“No-brainers” or “Give-away” Questions
The next step in preparation is to review your opinion to identify those weaknesses in your side of the case and to divide those weak points into two categories. The first category constitutes those points that must be conceded outright without argument that would merely seem contentious. These may be termed the “no-brainers” or “give-aways.”
EXAMPLES:
Isn’t it true that suicide often cannot be predicted?
Isn’t it true that your review of the case occurred after the fact?
Isn’t it true that your assessment of testamentary capacity is occurring after Mr. Smith is dead?
Experts may disagree on a case, correct?
Isn’t it true that a bad outcome may not reflect negligence?
In the previous real-life examples, the only valid answer is “yes,” because the queries are so general as to lead to obvious answers. The beginning expert often wastes time and—more importantly—loses credibility by struggling or arguing over obvious points. A simple concession to the point would actually aid credibility by showing the jury that the expert is objectively acknowledging the limits of the opinion and willing to agree with the other side when indicated.
An exception to the previous rule occurs when the CEA asks a question that tries to present the part for the whole.
EXAMPLE:
CEA: Does rapid speech mean that someone is manic?
A simple “no” would leave some ambiguity because that is one symptom of mania. In this kind of situation, the best answer might be: “In a vacuum, no.” In addition to suggesting that the CEA is being misleading by eliminating context, this phrasing allows one’s retaining attorney on redirect to explore what additional data from the case might fill that vacuum, so to speak. Alternative answers such as “It depends” and “I can’t say without context”—although perfectly accurate and valid—do not actually answer the question and thus may suggest to the jury that the expert is being evasive.
The vacuum response is especially useful when the opposing attorney is using the approach called “gerrymandering the data.” Based on an old term describing restructuring election districts into smaller units to influence votes, this strategy in the present context means cutting up case material into discrete elements that can be separately attacked, thus avoiding the significance of the whole (2). In the previous case of the attorney trying to disprove that a person has mania, the questions might go like this.
EXAMPLE:
Does feeling cheerful mean someone has mania?
Does spending money mean someone has mania?
Does losing sleep mean someone has mania?
Does liking to travel on short notice mean someone has mania?
and so on.
Again, the most effective and truthful answer is probably: “In a vacuum, no.”
Here is another example, in which a patient became ill in 1985 but the actual diagnosis was not detected and made until 1991.
EXAMPLE:
CEA: Doctor, this patient was not diagnosed between 1985 and 1986, was he?
EXPERT: That’s correct.
CEA: Nor between 1986 and 1987?
It is already pretty clear where this is going: the period of illness is being chopped up into “unit windows of nondiagnosis” as though to
refute the reality of the illness, which was an ongoing, continuous process. Just letting it ride to its inevitable conclusion would be acceptable; the expert wishing to take a more active role might respond in one of the following ways.
refute the reality of the illness, which was an ongoing, continuous process. Just letting it ride to its inevitable conclusion would be acceptable; the expert wishing to take a more active role might respond in one of the following ways.
EXAMPLES:
EXPERT: Undiagnosed but clearly still sick.
EXPERT: That is correct, we now know the diagnosis of this man’s many years of illness was not made until 1991.
EXPERT: Not in thattime frame, that is correct.
Actual Weaknesses in Your Case
The second category of weaknesses in your side of the case includes those points that require more extensive discussion or awareness of the effect of context on the points in question. These might be termed “actual weaknesses” or “inherent weaknesses of the facts of the case.” It is indeed a rare case that goes all the way for one side, and those are, of course, usually dismissed or settled early in the game. The cases that make it to actual controversy are either ones that present the typical mixed picture—some weaknesses and some strengths for either side—or those regrettably driven to litigation by the narcissistic pressures of the attorneys or the emotions of their clients.
This last point may require a brief digression by way of explanation. Although civil settlement or criminal plea bargains are often the best outcome of a case purely from the view point of efficiency and social value, attorneys will occasionally take the position: “Settle, hell! I can win this one!” This view can lead attorneys to reject even reasonable settlement offers and choose to fight the case for glory, publicity, and building a reputation. Their clients, on the other hand—the actual parties in the case—may also reject the wise solution and make choices based on some typical feelings. For example, surviving family members, riddled with guilt after a suicide, may push litigation to shift blame squarely onto the treating mental health expert; paranoid individuals may litigate a false commitment claim to “clear their names”; profoundly depressed criminal defendants may reject reasonable plea bargains to obtain the self-punishing experience of public trial by jury. These examples are part of common legal experience.
Stealing Thunder
When considering the actual weaknesses in the side of the case that has retained you, careful preparation of how to explain them is required. Two principles dominate. First, it is important to come up with a nondefensive way of expressing this issue; the appearance of a weaseling pseudo-concession severely weakens credibility. Second, weaknesses in a case should be actively discussed on direct examination where one can use both preparation in collaboration with one’s retaining attorney and
a modicum of control over the pacing and the delivery of the material to the court. As noted earlier, the technical name for this approach is “stealing thunder.” The reader should understand that a portion of the preparation for cross examination is assisting the retaining attorney in crafting direct examination that anticipates lines of attack.
a modicum of control over the pacing and the delivery of the material to the court. As noted earlier, the technical name for this approach is “stealing thunder.” The reader should understand that a portion of the preparation for cross examination is assisting the retaining attorney in crafting direct examination that anticipates lines of attack.
EXAMPLE:
All litigation occurs after the fact; thus, the hindsight bias (discussed more extensively elsewhere in this volume) is a pervasive problem for all experts. The idea of the hindsight bias and the steps taken to minimize it should be reviewed on direct. In the case, say, of a suicide malpractice case as a plaintiff’s expert, when the opposing attorney attempts impeachment by pointing out the patient’s death was a known fact before the expert was retained, one can point out that this was already extensively discussed on direct. Your friendly offer to repeat your testimony will probably be regretfully refused.
EXAMPLE:
An attempt to dispose of evidence is suggestive of awareness of criminality and thus of legal sanity. Anticipating cross, an expert who has carefully formed an insanity opinion may testify thus on direct:
RETAINING ATTORNEY: Isn’t disposal of evidence of a crime considered by forensic experts as a sign that the person understood the criminality of his actions?
EXPERT: That is generally true.
RA: And you are aware that Mr. Jones threw away the knife that appears to have been the murder weapon?
EXPERT: Yes.
RA: How did you interpret that?
EXPERT: While attempting to hide evidence is often a sign of a person’s appreciation that they did wrong, in this case Mr. Jones’ delusions of infection and contamination by the victim led him to throw away the knife to avoid being infected by it; in other words, it was a function of his mental illness and the delusion that led to the attack.
This approach anticipates the obvious cross on this same point.
Note that an occasional attorney may be locked into a prepared cross that simply rehashes this direct testimony; juries often grow impatient with such reiteration.
EXAMPLE:
An expert testifying for the plaintiff in a psychiatric malpractice case testified extensively on direct about the idea of the “primacy of the on-site observer”—a term that expert had actually introduced into the literature (2). The term refers to the importance of affording the person on the scene (the “on-site observer,” often the treater) the maximum benefit of the doubt in clinical judgment because that person had access to observations of the patient that no record could capture. The expert in this case described on direct the steps taken to overcome that primacy from record material. The cross-examining defense attorney had collected, as apparently
his only content for cross, a dozen previous examples of the expert’s testimony in preparation for impeachment by harping on the fact that the primacy of the treating defendant doctor should be determinative. Unfortunately, the thunder had been stolen, and the opposing attorney essentially quoted markedly consistent testimony about this issue from various sources, demonstrating only that the expert testified consistently. Because the attorney had not prepared another line of attack, that was the extent of the cross.
his only content for cross, a dozen previous examples of the expert’s testimony in preparation for impeachment by harping on the fact that the primacy of the treating defendant doctor should be determinative. Unfortunately, the thunder had been stolen, and the opposing attorney essentially quoted markedly consistent testimony about this issue from various sources, demonstrating only that the expert testified consistently. Because the attorney had not prepared another line of attack, that was the extent of the cross.
In sum, preparation with your retaining attorney is very helpful to identify what concerns you have about cross-examination lines of attack and to design in collaboration ways of addressing them on direct. A useful paradigm might be to consider taking the opposing view of your case and contemplating how you would defend it if you were an expert for opposing counsel. This is another way of detecting and exposing the weakness of your case. For example, when serving as a defense expert for a civil case involving posttraumatic stress disorder (PTSD), one might switch the focus and think about how one would testify if one were the plaintiff’s expert in the same case. We often have our trainees switch sides, so that they learn to be in touch with both the strengths and weaknesses of each case they become involved in.
Imagery: Metaphors and Analogies Anticipating Cross
Experts dealing with weaknesses in the case often find it helpful to construct vivid analogies or metaphors to aid communication of this area. It is not uncommon that such imagery sticks in juror’s minds more durably than actual verbal testimony. If the demographic and occupational background of the jurors is available, tailoring the design of those images to the jurors’ fields may be especially effective.
EXAMPLE:
A patient had lied to caretakers about drug use that interacted with medications. The defense expert, hearing that one juror had just done his taxes and another worked on computers, testified as follows:
EXPERT: Lying to your treaters is like doing your taxes on the computer and putting in wrong numbers; the result you get is also wrong and not helpful to you.
RETAINING ATTORNEY: Is that like “Garbage in, garbage out”?
EXPERT: Exactly.
These similes might resonate particularly with at least two of the jurors.
Alternate Scenarios
Preparation for cross examination shares one feature with the expert’s initial decision as to whether the case is meritorious: the consideration of alternate scenarios (2). Your retaining attorney represents one side or one aspect of the case; consequently, that attorney also has a theory of
the case that organizes his or her approach. The attorney will usually share this theory with the expert from the beginning of the retention discussion: “We believe that our client was the victim of negligence”; “We believe our client was unaware of the wrongfulness of his actions.” The expert must ask himself the question, what other theories of the case would comparably account for the psychiatric aspects?
the case that organizes his or her approach. The attorney will usually share this theory with the expert from the beginning of the retention discussion: “We believe that our client was the victim of negligence”; “We believe our client was unaware of the wrongfulness of his actions.” The expert must ask himself the question, what other theories of the case would comparably account for the psychiatric aspects?
EXAMPLE:
The grandiosity of bipolar disorder, manic phase, may have led the defendant to take money from the bank based on the delusion that he actually owned that bank—possible grounds for an insanity defense. An alternate scenario may have been that he simply wanted the money.
Having identified alternate scenarios, the expert should now outline and design appropriate rebuttals and challenges to those alternate scenarios. Helpful lines of inquiry might include the following: Why does the alternate scenario not fit as well as your main theory? What key points define that superior fit? What case-specific facts differentiate this case from those encompassed by the alternate scenario?
Your Own Words Back to Bite You
One of the most basic approaches to impeachment of the expert by the cross-examining attorney is to use the expert’s own words. All common instructions to attorneys include this point; moreover, contradiction with the expert’s own words is often perceived as more damaging to the expert’s credibility than other forms of impeachment. This approach draws from two main pools, both of which should be foci of the expert’s preparation.
First, the expert should review—at least mentally—his or her own writings, lectures, audio and video recordings, and presentations; this review should include articles on which the expert is only one of several authors, because efforts will be made on cross to hold the expert to his or her fellow-authors’ views, if that approach is seen as advantageous to the cross (obviously, this step can be omitted if none of these media exist). What has the expert written, spoken about, or said in some recorded fashion that might be seen to contradict the reasoning or testimony in the instant case? Then, taking it to the next level, how might what is said be portrayed as contradicting one’s reasoning here?
It is a sad fact of expert practice that—regardless of the inherent value of contributing to the literature of the field—the more one has written, the more one may have to “eat” on cross.
The second pool of data requiring review is testimony in previous cases; this source of possible impeachment is not necessarily limited, however, to cases that are structurally or factually similar to the instant case. Most senior experts are aware that almost all sworn testimony
remains on mainframe computers accessed by the plaintiff and defense bar. Thus, as noted in a previous example, attorneys can obtain previous testimony and attempt to impeach your statements in the present case by quoting different testimony from a supposedly similar case in which you testified earlier.
remains on mainframe computers accessed by the plaintiff and defense bar. Thus, as noted in a previous example, attorneys can obtain previous testimony and attempt to impeach your statements in the present case by quoting different testimony from a supposedly similar case in which you testified earlier.
Certainly the importance of a mental review of previous cases that come to mind justifies the time and effort to do it. However, attorneys may bring up a case from decades earlier whose content you may have forgotten entirely. This problem can at least be minimized by the following two points.
First, “I do not recall a case from that long ago” is a perfectly acceptable answer. An expert may ask to see the site of the quote and may then read the pages before and after to be clear about the context. If this does not help, the expert is perfectly proper in stating that he or she cannot answer the question without context that he or she cannot recall.
The second point recalls “forensic repression”—the process whereby, when a case is over, the expert makes every conscious effort actively to push out the details from his mind, so that they do not carry over into the next case. It is both embarrassing and harmful to one’s role in a case to have details from a previous case confuse, confound, or block material from the present case from coming correctly to mind on the stand. The problem is heightened when the expert must testify in two similar cases in trials occurring in close succession. If the cross-examining attorney suggests that your inability to recall some detail from a previous case is some form of forensic negligence, the concept of necessary forensic repression should be explained, at least on redirect.
The questions the expert should ask himself or herself in this last context are as follows: What previous cases resemble this one? How do they differ? Are there critical distinctions between those cases and the present one? How might you explain the differences? Although all cases differ to varying degrees, recall that any similarity may be exploited by the opposing attorney in an attempt to impeach you: “You said this in this suicide case and that in that suicide case; is that not a contradiction, showing that you just say what you are paid to say?”
The “Self-cross Exam”
This element means what it appears to: cross examine yourself. Place yourself in the shoes of the cross-examining attorney: what question could you ask from that vantage point that would impeach your testimony; what challenges, no matter how loosely fitted to the case in question, could you mount against your own testimony? In this self-scrutiny do not omit consideration of concrete or trivial matters such as your fees, your having worked previously for this same attorney or law firm, and so on; consider how this material might best be framed on direct examination.
Complete preparation would go beyond simple factual issues and would include asking oneself, what question would obfuscate the issue and confuse the jury? For example, throwing around very broad terms such as “competence” and “suicidality” in generalities is a common approach by cross-examining attorneys.
EXAMPLE:
Defense expert in a malpractice case after a successful suicide:
CEA: Doctor, was this patient suicidal?
EXPERT: If, on the one hand, by “suicidal” you mean was suicide the cause of death, then the answer would have to be “yes.” On the other hand, if you mean did the patient’s presentation to the treaters give any warning about the suicide attempt, the answer would have to be “no.”
Note that simply responding “it depends” sounds evasive, especially because the patient is undeniably dead from suicide. Note also how the phrase “on the one hand” resists the attorney’s closing the conversation with “no further questions” after only the first half of the answer is out. The response, “At what point?” also forces the questioner to fix a specific time at which signs of suicidal ideation or intent might or might not have been present.
Skeletons in Your Closet
Your retaining attorney is entitled to know all the gory details about any past trouble you have been in. One of the worst things an expert can do is to surprise his or her own retaining attorney on the witness stand in this way. The “skeleton” may be nothing more than the fact that you are not yet board certified or that a psychotic patient complained to the hospital that you were planting bad thoughts into his head. Be ready to identify—preferably on direct—some of the problematic aspects of your past: complaints to the Board of Registration or ethics committee, even if baseless; legal history, even if irrelevant; scandals, even if not involving you directly. As with other forms of “stealing thunder” noted previously, this is a critical component of preparation for cross.
Neutrality and Dispassion Above All
One of the most difficult aspects of forensic expert witness work to convey to trainees is the importance of not feeling personally invested in the outcome of the case. As noted elsewhere, the same novice expert who cheerfully gloats, “I won that case for the lawyer” is often less inclined to state with reasonable symmetry, “I lost that case for the lawyer.” A great deal of legal research suggests that experts are not perceived by many juries as credible, that they cancel each other out, and that the outcome of the case is often governed in totality by the original demographics of the jury selection process (e.g., reference 5).
The expert should aim, as part of the preparation, to achieve dispassion through meditation, reflection, or other means. It is often difficult
to distance oneself from the outcome, but the effort should be made. The expert should aim for a zenlike calm and detachment, leading to an indifference as to which way the case comes out or which side prevails. As a reflection of that dispassion, maintaining identical, polite but interested demeanor on both direct and cross, no matter who is asking questions, is the desideratum here. You are there, not to win or argue, but to teach.
to distance oneself from the outcome, but the effort should be made. The expert should aim for a zenlike calm and detachment, leading to an indifference as to which way the case comes out or which side prevails. As a reflection of that dispassion, maintaining identical, polite but interested demeanor on both direct and cross, no matter who is asking questions, is the desideratum here. You are there, not to win or argue, but to teach.
As noted earlier, the proper question to ask oneself after the case is over is: “Did I successfully protect the truth of my opinion from both attorneys?”(6) A “yes” answer is cause for satisfaction; a “no” answer is a stimulus to learning from it, studying what occurred, and preparing better or differently next time.
To sum up our discussion of preparation for cross, we must accept that cross examination is an inevitable part of the adversary process in the courtroom; as with direct, a significant amount of preparation will be extremely helpful. In a panel on courtroom theory at Harvard Medical School, a highly experienced judge revealed that, when an expert seems not to have anticipated a predictable line of cross examination (e.g., the possibility of malingering), that expert loses credibility in that judge’s eyes; we can readily anticipate that jurors would respond in a similar manner (4). Finally, as noted, the witness who displays the same demeanor on direct as on cross conveys a sense of balance and objectivity, rather than an argumentative press to “win.”
RESPONDING ACTIVELY TO CROSS EXAMINATION
The expert’s goal on the stand during cross examination should continue to be the protection of truth from both attorneys; many times this requires a somewhat passive stance, merely handling the question so that it does not injure your testimony. Your retaining attorney, of course, has the opportunity to repair some problems (they call this rehabilitating the expert) in the redirect phase of the proceedings. However, there are some contexts in which the expert may take a more active role, not only in resisting the efforts at impeachment but also in affirmatively advancing his or her own opinion. This section addresses some of those approaches.
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