Another interesting trial tip article on the ABA Litigation Section’s website is Terrance J. Lavin’s “Directing and Cross-Examining the Well-Credentailed Expert.” He explains how you can treat an expert with respect while advocating your theory of the case.
Lavin writes (excerpt):
First, treat the witness with respect, but do not place her in an exalted state. You shouldn’t ask any questions that will allow the witness to remind the jury of her qualifications. If the expert is a true academic and testifying in a “real world” kind of case make sure that the jury understands that all of her time is spent in the ivy tower. You should be able to do this without insulting the witness.
Probably the best advice for cross-examining a well-credentialed expert is to be very brief. Start out with areas of agreement that the witness shares with your theory of the case. Once you have fleshed out the non-controversial items, you can wade slowly out into the deep water.
Using a malpractice case again as an example, you might want to suggest that the physician that the expert is testifying for had other alternatives in “complying with the standard of care.” It might go something like this:
Q: Now, Dr. Perfect, it is your opinion that Dr. Jones was in compliance with the standard of care even though he failed to diagnose the patient with breast cancer in March of 1998, correct?
A: Yes.
Q: That is because you believe that the complaints were too subtle for him to have considered the diagnosis, true?
A: That’s right.
Q: You will admit, though, that some doctors in the same circumstance might have been suspicious based upon the patient’s complaints, right?
A: I suppose so.
Q: And if a doctor has an index of suspicion, it would be within the standard of care to go ahead and order a mammogram, am I correct?
A: Yes, if you had that suspicion.
Q: Under these circumstances, a doctor could also comply with the standard of care by ordering a needle aspiration biopsy, true?
A: He could.
Q: And I guess the ultimate statement would be that a doctor would comply with the standard of care in these circumstances if he made the diagnosis six months earlier than it was actually made.
A: Yes, but only if he was suspicious.
Q: But we know that Dr. Jones was not suspicious, was he?
A: That’s correct.
Q: Which is one explanation for why the diagnosis wasn’t made for another six months, true?
A: Well, as I said before, there are reasons why…