COVID REPEATS 37: CROSS-EXAMINING EXPERT WITNESSES: HINTS, TIPS AND LINKS
The impartiality, or otherwise, of expert witness witnesses was in the news in June 2014. Since expert evidence has been a constant theme on this blog. This would seem an appropriate time to revisit a post about 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
(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.
- Keene Trial Consulting consider some research findings on experts in the U.S. Including, in particular, the finding that personal attacks on experts, and rudeness, tend to result in the expert’s testimony being given more credibility.
“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“.
- Mitch Jackson has a You Tube video on cross examination of an expert witness
- SEAK have a checklist on cross-examining expert witnesses (which I suspect could be adapted to deal with 90% of cross-examinations).
- Ricardo D Cedillo offers Practical tips on cross examination of expert witnesses
- The Expert Institute has Cross examination tips for questioning an expert witness
- Edward H Pappas, writing in the Michigan Bar Journal offers practical guidance on Cross examining expert witnesses
- The Trial Lawyer offers 8 ways to cross examine an expert witness
- The Legal Intelligencer has the keys to cross-examining any expert witness
- William Smith on how to effectively cross-examine an expert witness
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).
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.