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Cross Examination of an Expert Witness.

Posted on 18/01/2014 · Posted in Expert Information

By Dr Thomas Walford

Once you have done your report as an expert and met with the other expert and completed the joint memorandum, the final stage of the work is the trial itself. This is where all the work that has been completed so far comes together and there is the chance for the other side to test the evidence and opinions that you already articulated. As such it is one of the most exacting phases of the legal process yet also one of the most important. The preparation is also probably the most intimidating stage of the work that you will complete as an expert.

I have given evidence a number of times both in court and also as part of a deposition, which is the process in the US whereby cross examination is made before the trial starts. The most important advice I can give to anyone is to be well prepared. It is never possible to think of everything but the opportunity to re-read your report, read the witness statements and the other expert’s report(s) often will provide good pointers as to what are the areas that may be covered. However it is impossible to predict all the angles and so your capability as an expert will undoubtedly be tested. I regard this as an opportunity to show the depth of your knowledge.

Cross-examination is the greatest legal engine ever invented for the discovery of truth.”
John Henry Wigmore

Many trials are now resolved prior to the hearing and as a result fewer cases are coming to court. There are a large number of experts who have never needed to give verbal evidence in court and so will never have had to be cross examined.

For anyone going into this process, I would always encourage them to relax and remember that it is not them who are on trial. It is not the expert to deal with points of law, but to explain the normal process that would be followed by a reasonably competent practitioner in the field. This obviously is a problem in that it is not how you, the expert, would have acted; it is how a normal person engaged in the field would have acted.

There are a number of important guidelines which experts called to give evidence may like to remember. I have listed them below:

  • Think about your answer and make sure it is the answer to the question;
  • Don’t be rushed;
  • Don’t get riled;
  • Never be concerned about not knowing the answer or not having considered an aspect of the evidence. If this is the case just say so;
  • Always reply to questions in full – you never know when that will be your last chance to make a specific point;
  • Provide your answers to whoever is going to make the final decision in the case; i.e. the jury for jury trials and the judge for non-jury trials;
  • Keep it clear and simple;
  • Ensure that what you say is consistent with your report the evidence to the court and any previous answers you have given;
  • Avoid Jargon – do not use acronyms however prevalent they are used in your field. They will always put the listener off;
  • Make all your points firmly and refer to any assumptions you have made. Alternatively caveat your answer;
  • Never agree to any opinions in cross examination but put your views or opinions in your own words. This is a standard ploy of cross examination barristers with a view to leading you into an area outside your expertise. Be very careful of anything hypothetical;
  • Always end an answer with your conclusion and opinions;
  • A good answer to a question or scenario that you largely agree with is to say “Yes but with reservations”. This is not a full agreement so you cannot be represented with something that you previously agreed with and it will normally mean that the Judge will then ask what are the reservations. This enables you to provide the full reasoning and views without appearing to wasting the courts time with over long answers;
  • Remember this is not a point scoring exercise – you are there to defend your position and no more. The real facts and opinions should have been in your report;
  • Ask the court usher what you should call the judge – it is always useful to get this right.
  • Remember that credibility comes from never overstating a position; and
  • I always find it a good solution to quote from your report as this you will have thought about in detail and written in a balanced way.
  • Remember L.A.D.S. – One very senior US advocate once told me that giving evidence was easy if you just remembered the acronym L.A.D.S. which stands for:
    • Listen to the question asked
    • Answer the question asked and only that
    • Don’t argue
    • be Short and Succinct

I always like to attend court before being called to give evidence. This gives you a chance to see the barristers in action and get a feeling for their questioning style. You should now be ready. Good luck.

Please also see article on direct examination of an expert witness.

Disclaimer – Please confirm any of the above views with your solicitor. Expert Evidence takes no responsibility or provides any guarantee that the views above are correct for your particular case or jurisdiction.