This is an edited excerpt from an article written by Edward T. Kole in the June 2021 edition of New Jersey Lawyer, focusing on trial advocacy and preparedness. Read the full article, which offers details on how to prepare for the cross-examination, and issue here (login required).
Here are some tips to make your next cross-examination of an expert during trial more effective.
- Brevity is essential. You want the judge or jury to retain the core points. The longer you take and more extraneous information you go over, the less likely you will be effective;
- Hit the issues you need to hit. Pick out the major points you want to make and make sure they are built into your outline and cross to effectively make those points. You do not want your three main points to get lost in six other less important ones;
- Pace yourself. While you need to be brief, cross-examination is not a sprint. You control the pacing of the questions—allow time for your audience to comprehend the question and answer;
- Control your witness. You should only ask leading questions. Explanations are not for cross. If the witness looks to explain, attempt to address it yourself in the first instance. If that fails, ask the judge for assistance. If the judge allows the expert to amplify their answer, do not argue with the judge—sometimes you just need to roll with the situation;
- Do not restate their direct testimony. Unless you are stating a point and then immediately contradicting that point, do not reaffirm the expert’s testimony. You will only bolster that testimony by allowing the judge or jury to hear it twice;
- Use demonstratives, if applicable. Technology, video and graphics are great. Often though, the economics may not allow it. If they do, consult with a specialist early to explore options and tech support. But, whether the economics permit it or not, you still may want to go old-school. By way of example, take the giant pad on the easel and your marker and enjoy the moment. Break down the expert’s damage claim piece by piece, and then reconstruct it. It can be very powerful to use the expert’s own numbers and then their testimony on cross to modify or eliminate their position on paper in front of the judge and/or jury. Also, remember to mark the fruits of your labor into evidence;
- Use of deposition testimony or documents to cross-examine are effective tools at attacking the expert’s credibility if done right. Remember your witness can only say yes or no—this is not a time for the witness to explain their testimony or a document. Rather, it’s your time to besmirch their testimony; and
- Grand finales can be overrated, but you do not want to end on a “who cares” moment. Therefore, try to end on a significant point you want the judge or jury to take away from the cross.
In sum, cross-examination can be fun and more importantly effective—the devil however is in the detail—preparation, preparation, preparation.