CROSS-EXAMINING EXPERT WITNESSES: HINTS, TIPS AND LINKS

Mediatelegal

The impartiality, or otherwise, of expert witness witnesses is in the news today.  This would seem an appropriate time to look at the cross-examination of expert witnesses, particularly in the context of civil litigation.

THE ROLE OF THE EXPERT IN CIVIL PROCEEDINGS

There is no doubt  about the role of the expert in civil proceedings. The expert’s function is to assist the Court.  The rule is set out in CPR 35.3.

“Experts – overriding duty to the court

35.3

(1) It is the duty of experts to help the court on matters within their expertise.

(2) This duty overrides any obligation to the person from whom experts have received instructions or by whom they are paid.”

CROSS-EXAMINING EXPERTS IN CIVIL PROCEEDINGS

This may well be becoming a rare event. The development of joint meetings and joint statements means that many apparent differences between the experts are ironed out before the trial.  However when the experts do not agree the key issues of disagreement, and the reasons for them, should be clear.

HINTS ON CROSS-EXAMINING EXPERTS

There are numerous articles, posts and videos which give the advocate assistance in cross-examining experts. Many, but not all of these, come from the United States.

“Another lesson from this research is to remember to be unfailingly polite with all witnesses. You are                         on display at all  times to the jurors and they will make judgments about you and your case based on                               how you approach witnesses“.

CHAPTERS FROM BOOKS

One of the best books on cross-examination is Francis H Wellman’s “Cross-examination”. The chapter on cross examining expert witnesses is available free on-line (as indeed is the whole book).

TRIAL TRANSCRIPTS

Sir Harry Ognall’s cross-examination of the psychiatric experts in the “Yorkshire Ripper”/Peter Sutcliffe trial makes for fascinating reading.

IS THERE A THEME TO ALL OF THESE TEXTS?

All of these texts (and I have selected a few of many) put different emphasis in the task of cross-examination.  The common themes emerge from the Expert Institute post.

1. Be prepared.  The cross-examination of experts is not something that can be done off the cuff.

2. Have a plan.

3. Ask fact specific, cross-examination, questions.

4. Never ask a question you don’t know the answer to.

5. Listen to the answers.

REMEMBER YOUR OWN EXPERT WILL GO THROUGH THE SAME PROCESS

It is prudent to remember that your own expert will undergo rigorous cross-examination.   Whilst I am resolutely against the process of witness coaching any prudent advocate should take rigorous steps to test the solidity of their own expert witness prior to trial.  Everyone involved in litigation knows that more than one case has settled after a pre-trial conference with a parties’ own expert. Assessing the strength of expert evidence in conference is wholly different to witness coaching.