Advanced Techniques for Cross- Examination of the Technical Expert

Advanced Techniques for

Cross-Examination of the Technical Expert

Toyja E. Kelley

Lydia S. Hu

Tydings & Rosenberg LLP

100 E. Pratt Street, 26

_Floor

Baltimore, MD 21202

(410) 752-9747

[email protected]

[email protected]

Toyja E. Kelley is a commercial litigation partner in the law firm of Tydings &

Rosenberg LLP. He concentrates his practice on construction, products liability,

insurance coverage, and business tort litigation. Mr. Kelley is President-Elect of the

Maryland Defense Counsel, Inc. He is also a member of DRI’s National Board of

Directors.

Lydia S. Hu is an associate in the litigation department in the law firm of Tydings &

Rosenberg LLP. She assists clients with their commercial litigation needs, including

insurance defense, products liability, and business torts. Ms. Hu is the DRI Young

Lawyers Liaison of the Maryland Defense Counsel, Inc. and is active with the DRI

Young Lawyers Committee and Women in the Law Committee.

Advanced Techniques for Cross-Examination of the Technical Expert

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Advanced Techniques for

Cross-Examination of the Technical Expert

I. Introduction ...289

II. Preparation and Organization ...289

III. Realize Your Objectives ...290

IV. Ask Leading Questions…Mostly ...290

V. Know the Rules of Evidence ...291

VI. Know Who You Are and Be the Star ...291

VII. Conclusion ...291

Advanced Techniques for Cross-Examination of the Technical Expert

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Advanced Techniques for Cross-Examination of the Technical Expert

I. Introduction

There should be little doubt about the importance of a successful cross-examination of the techni-cal expert in a construction case. These experts are a triple threat: highly educated, rigorously trained, and well-healed at presenting testimony. No matter what issues are present in your case, the cross-examination of architects and engineers is a daunting challenge that can never be underestimated. Experienced litiga-tors adhere to the “Ten Commandments of Cross-Examination,” from the Art of Cross-Examination by Irving Younger, ABA Monograph Series No. 1 (ABA Section on Litigation 1976), and its progeny in an effort to com-bat these challenges. This paper focuses on five principles and techniques of effective cross-examination that are most important when facing the technical expert in a construction case.

II. Preparation and Organization

“Give me six hours to chop down a tree, and I will spend the first four hours sharpening the axe.” — Abraham Lincoln

Despite the fact that lawyers are some of the most risk averse people in the world, it is surprising the number of lawyers that fail to observe what is arguably the most important technique at effectively cross-examining the technical expert. Proper preparation does not begin the night before your opponent is to call his or her design engineer to testify in a construction defect case. In most cases, effective preparation begins the moment that you receive the assignment and you start the process of understanding just what your oppo-nent’s case is all about. Use of the full assortment of discovery tools available, therefore, should be a key part of your preparation.

As early on in this process as possible, you should endeavor to learn just who your opponent intends to call as an expert witnesses. In federal court and many state court jurisdictions, pre-discovery disclosures are mandatory by rule or standing order and certain information about the case must be exchanged shortly after the defendant files an answer. See, e.g.,Fed. R. Civ. P. 26 (2012). Rule 26(a)(2)(A) expressly requires the identification of experts that are expected to testify at trial. The disclosure of these experts must also include a written report with the following information:

• a complete statement of all opinions the witness will express and the basis and reasons for them;

• the facts or data considered by the witness in forming them;

• any exhibits that will be used to summarize or support them;

• the witness’s qualifications, including a list of all publications authored in the previous 10 years;

• a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and

• a statement of the compensation to be paid for the study and testimony in the case.

Id. If you are not litigating in federal court or in a jurisdiction which does not have similar initial disclosure requirements, it is imperative that standard discovery requests are formulated which allow you to gather as much information about the expert witnesses that your opponent plans to call and the factual information on which he or she will base his or her opinions as possible.

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In addition to the customary assortment of information, documents, and facts that you would typi-cally gather in any case, you should make an intensive effort to learn as much as you can about the expert’s background. You should make use of expert witness databases, listserves, and your professional network to research information about your opponent’s witness. More often than not, your opponent’s expert has a long paper trial that will be fertile ground for use at trial during cross-examination. So long as you do not practice in a jurisdiction that forbids the practice, regular review of your opponent’s expert witness’s social media presence should also be a standard part of your preparations. Be careful, however, to avoid the many ethical pitfalls of this practice. See generally N.Y. State Bar Assoc. Ethics Op., Op. 843 (Sept. 10, 2010), available at http://www.nysba.org/AM/Template.cfm?Section=Home&TEMPLATE=/CM/ContentDisplay .cfm&CONTENTID=43208; N.Y. City Bar Assoc., Formal Op. 2010-2, available at http://www.nycbar.org/eth-ics/ethics-opinions-local/2010-opinions/786-obtaining-evidence-from-social-networking-websites; Philadel-phia Bar Assoc. Prof’l Guidance Comm., Op. 2009-02 (Mar. 2009).

After extensive review of all of this information, your theme of the case and, consequently, your cross-examination objectives should be beginning to take shape. The deposition of the expert witness is an opportunity to test these themes and objectives outside of the presence of the judge or jury and to lay the ground work for effective impeachment at trial. Even the most experienced technical expert is no stranger to forgetting what he or she has said or, in the case of some experts, flatly contradicting their testimony in the current case.

With the completion of discovery and armed with the expert’s deposition testimony, you should be ready to do battle in the arena that is the courtroom.

III. Realize Your Objectives

“If you don’t know where you are going, you’ll end up someplace else.” — Yogi Berra

You should be acutely aware of what it is that you want to accomplish with the cross-examination of the technical expert at trial. Many scholars, like Irving Younger, suggest a very limited cross-examination, with no more than three points. However, the technical issues present in many construction cases will require much more time on cross-examination to develop the points necessary to respond to the impact of the direct examination. You should not be afraid to announce your objectives to the witness as your begin your cross-examination. This is particularly true when trying the case in front of the jury.

IV. Ask Leading Questions…Mostly

“Control your own destiny or someone else will.” — Jack Welch

Since your first day of trial advocacy class in law school you have been told that you should ask only leading questions on cross-examination. Leading questions allows you and not the technical expert witness to control the dynamics of the courtroom. Cross-examination is not the time for the expert to reinforce the idea that he or she is the smartest person in the room. When in doubt, lead the witness.

Like all things, however, there are exceptions to this old adage. Asking only leading questions can, at times, bore the judge or jury to tears. You may also risk losing one of the most important reasons for ask lead-ing questions, impeachment of the witness. The fundamental reason for asklead-ing the leadlead-ing question is that you know the answer the witness will give. By asking the right open question at the right time, however, the

Advanced Techniques for Cross-Examination of the Technical Expert

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witness may waffle or change his testimony. Because you have thoroughly prepared by taking the witness’s deposition, and researching their background, you can destroy the witness’s credibility by pointing out this inconsistency.

V. Know the Rules of Evidence

“Know the rules well, so you can break them effectively.” — Dalai Lama XIV

While the technical expert may be an expert of the technical issues in your case, you should be the expert of the rules of evidence. A thorough review of the rules of evidence and applicable case law should have been a part of your preparation for trial. You should make special note of those rules that are particularly important to your case. You should anticipate the documents in your case that pose authenticity and admissi-bility problems. Effective cross-examination should begin during your opponent’s case in chief. If you are suc-cessful at keeping out a fundamental piece of evidence, you may have destroyed your opponent’s expert before he even takes the stand.

VI. Know Who You Are and Be the Star

“...be yourself—not your idea of what you think somebody else’s idea of yourself should be.” — Henry David Thoreau

By the time that you are in the position of cross-examining the technical expert at trial, you have no doubt developed your own style. The best trial lawyers, however, have learned how to adapt that style to the situation while staying true to who they are at the core. Maintaining control over the technical expert may require you to adapt your style to the situation.

VII. Conclusion

While the suggestions discussed above should not be new to anyone that has ever cross-examined any witness at trial, they should be mastered in order to effectively cross-examine the technical expert. The technical experts pose particular challenges because of their experience, knowledge, and training. If these suggestions become second nature, you will be more confident with your cross-examination. The judge or jury will sense your unwavering confidence thereby increasing your chance of winning at trial.