Law Firm Articles

Cross-Examining Defense Experts

Daniel Webster Munley, Esquire
Munley, Munley & Cartwright. P.C.
Scranton Pennsylvania

One Saturday afternoon, I was in my office preparing for the first trial of my career. I would be cross-examining the defendant"s expert regarding whether my client could have experienced the injuries she claimed to have sustained as a result of the impact. At that time there was an article circulating among defense experts called "Perturbations of Daily Living." They would equate certain mundane life activities with a G-force, and then compare that G-force to the G-forces applied to the individual in the accident. As I prepared to cross-examine this individual, I had taught myself both the mathematics and science to determine how the expert arrived at his conclusions regarding the G-force. I had convinced myself that I could wade directly into the water of science and mathematics with the expert to show him where he made his errors and get him to conclude that I was correct and he was wrong.

As it happened, a wily veteran of the litigation wars, Atty. David Fallk, had recently taken up office space in our building, having returned from spending the previous ten years litigating cases in San Diego, California. I requested, and he agreed, to sit down and go through the cross-examination questions with me to help ensure that I was headed in the right direction. It was at this time and later in the case that I learned a very valuable cross-examination tactic: Listen to your elders.

Rather than take the advice of the seasoned lawyer, I tried to mix it up with the expert and realized, live and in color, the dangers of cross-examination because I was unable to control the witness. As time has gone by I realize that a game plan must be secured and executed if you are to have an effective cross.

CROSS-EXAMINATION: AN OVERVIEW

Cross-examination in a tractor-trailer case is not unlike your cross-examination in many of the cases you have been trying so far. Cross is like the trial within the trial. Perception often becomes reality. The jury will likely decide how much weight to give the witness by its perception of both the witness's believability and your ability to handle him. Therefore, in order to thoroughly prepare for the cross-examination of the defense expert witness, you must have clear objectives and goals in mind. As with any witness, the jury will not have an opportunity to get to know him personally as an individual, and may firmly believe the expert when he or she comes in and swears to tell the truth. Therefore, the primary goal of cross-examination is to make sure this does not occur by under-minding the expert's credibility.

To achieve this goal there are some basic approaches to cross-examining the defendant's witness. It will be up to you to determine which of these approaches best suit your case:

Prejudice: Follow the Money

Demonstrating prejudice on the part of the expert witness can be, and usually is, devastating. If you are able to accomplish this during the course of your cross-examination, it can be used later in your closing to point out that the defendant is not really on the search for the truth.

The first and most effective way to prejudice the defendant's case is the impeachment of their witnesses through the use of bias because of pecuniary interest on behalf of the expert. This is a fundamental way to show bias and undermine the expert's testimony.

As an example, let's take the cross of the Safety Director of ABC Trucking. He or she is often the individual responsible for hiring, training, and retaining drivers. The less spent on training these drivers. There will be the lower costs and more profit for the company. If the Safety Director's compensation can be tied to these cost savings, e.g. through bonuses and various incentives, then the expert witness has a motive to cut corners.

Other examples of cutting corners can also be established with Safety Directors and may be contrasted with the testimony of truck drivers involved in accidents. Use the company training manuals and brochures to test the driver's knowledge. Since Safety Directors are also responsible for ensuring the company drivers know and follow the Federal Motor Carrier Safety Act rules, check to see if regular safety meetings are conducted. Naturally they will claim there are meetings. However, see how attendance is monitored and if your defendant drivers were there. Ask if drivers are paid during the time they attend meetings. Since the drivers are not earning the company money while they are at meetings you may find another way to show money bias. Discrediting company safety policies goes a long way toward establishing proof of negligence.

Realistically, many times it will be difficult to establish that the witnesses have a pecuniary interest in the trial's outcome. However, in the preparation for cross-examination, you should look for trial transcripts, call fellow tractor trailer lawyers, and Google the expert witnesses. In addition make use of TrialSmith.com. This is a great source and the more plaintiff lawyers contribute to it the better we will all be prepared for trial. Specific databases are available to research expert witnesses in Westlaw and Lexis/Nexis or by running a general query through case law databases in either service using the expert's name. You can devise tactics and strategies to expose other biases of the expert witnesses so don't be afraid to make it part of your inquiry.

Obviously, the crown jewel of exposing the bias of the defendant expert is the amount of money they have generated in testifying for defendants or that particular defendant in numerous lawsuits over time.

Recently, in a tractor-trailer case that I tried, we were able to find information at TrialSmith.com about the defense expert. That information was staggering to the defense. By reviewing numerous trial transcripts, that were contributed to TrialSmith.com by fellow plaintiff lawyers from around the country. I was able to unearth powerful prejudicial evidence that revealed that the expert for the defendant and his company had made over $1.5 million dollars working for defendants in truck accident cases over a period of years.

Our cross-examination of this particular expert went as follows:

Q - Mr. Expert, today is not the first day that you have testified on behalf of defendants, is that correct.

A - Correct.

Q - And, in fact, sir, you and your company have made a handsome living testifying for trucking defendants and working for trucking companies as defendants in litigation claims, isn't that correct'

A - Well, counselor, that would depend on your definition of the term ''handsome.''

Q - Well, sir, certainly we can agree that both you and your company have made huge sums of money working for defendants in tractor trailer litigation, isn't that correct'

A - Again, counselor, it depends on your definition of the term ''huge.''

Q - Okay, how about a million dollars. Can we agree that you have made over a million dollars testifying for trucking defendants in court

A - I don't have those figures with me, sir.

Q - Well, I do have those figures with me. Do you remember the case of Smith v. Jones, wherein you were retained by defendant to testify

A - Yes.

Q - And do you recall admitting to that court and that you and your company had billed the attorneys representing trucking defendants $1.5 million over the years

A - Yes

Therefore, the witness, in this particular case, was reluctantly forced to concede that he had, in fact earned that sum testifying for trucking defendants in lawsuits. I went and got a large, oversized tablet with an easel, and placed them in front of the witness chair directly facing the jury. I then wrote with a green marker the numbers $1,500,000.00 dollars.

But I didn't stop there. I went on to elicit a response from him that indicated that he and his company had earned an additional more than $500,000.00 dollars testifying and therefore working for trucking defendants since that case was tried. Prejudice by pecuniary interest became apparent. During the closing argument, we called him the $2 Million Dollar Man.

Since finding this kind of information is often difficult, I will take this opportunity again to plug TrialSmith.com and ask that anytime you get a deposition or a trial transcript of a defense expert, share it with TrialSmith.com to aid fellow trial lawyers.

I also want to mention Google. Always, always Google the name of your opponent's witnesses. You may find remarkable things. In this day and age, most experts have web pages and their names appear in newspaper articles. A year or so ago I found my opponent's medical expert had not only a web page, but was selling advertising on his site, including one ad for a "gangsta" rap star's new album.

Attack the Margins

As I noted when I began, my wily, veteran friend counseled that taking an expert on directly in his field can be dangerous. Therefore, cross examination requires much perspiration and also a lot of inspiration. You must cogitate over the upcoming battle. You must be very prepared.

Recently, in a commercial litigation case tried by my office, I drew the assignment of cross-examining the defendant's marketing expert. That expert came with credentials as long as my arm. He held a doctorate and was the Chairman of the Marketing Department at an Ivy League school of business. I had never had a marketing class in my life. So as I sat down to prepare to cross-examine this particular expert there were two things I was certain of: 1) this individual knew and probably had forgotten more about marketing than I could ever possibly learn and 2) the last thing he and I were going to talk about was marketing. Therefore, what I decided to do was to attack the witness at the margins.

In that cross-examination, I was able to show the expert only took information that was favorable to the defendant and included only it in his report. With a little work, it was easy to find pages and pages of information that were both testimonial and favorable to my clients. However, the doctor, at no time during the course of his 15 page report, or his three hour direct examination, ever said a positive or kind word about the plaintiffs. Therefore, much of the cross was spent having the expert review page upon page of favorable comments and documentation regarding my client's company and its two cofounders. The expert never mentioned and was never asked about any of these positive comments in the direct examination. Combining these factors together, we were able to begin to demonstrate how biased this individual's efforts truly were to the defendant's case. I avoided a potential losing confrontation on the witnesses area of expertise.

Further, in preparing for the cross-examination, and after reviewing the witness's report, it was apparent that the number of documents involved were staggering. There were 60,000 pages of documents. Upon reflection, it occurred to me that I might find a way to make that particular problem a strength.

Since my opponent, in that particular case, was a law firm from Philadelphia, I began to wonder how the transaction took place regarding the review of 60,000 pages of documents. I wondered whether the law firm would ship 60,000 pages of the document, which took up a fairly spacious conference room in my office, across town to the witness. Perhaps the firm had the Chairman of the Department of Marketing drive across town to the defense lawyer's office. Hence, I began cross-examination, with the following question:

Q - Doctor, did the mountain come to Mohammed or did Mohammed come to the mountain?

Of course, it was necessary to explain to him my thought process. He soon admitted he went to review the paperwork at the law firm. Then I began to probe if the professor had an assistant or did that law firm provide an assistant to review all 60,000 pages of document's Predictably, it was the firm who provided the assistant, a lawyer no less, and we were a long way down the road toward eliminating the credibility of the doctor without ever entering the troubled waters of the issue of marketing.

Establish Your Story

Never forget to take advantage of the opportunity during the course of your cross-examination to re-establish all of the facts favorable to your case contained in the defendant's expert report. This should be done cautiously and with proper inflection in your voice at critical points. It has been my habit to write out each question, refine it, and then practice, practice, practice.

During this technique of cross-examination be sure to point out to the jury all favorable facts concerning your case which were omitted or overlooked by the expert. Make an emphatic point that these positive facts were not elicited from the expert during the course of the defendant's direct examination. This gives you two chances to ask the same damaging question of their expert -- establishing the facts favorable to your client were omitted and the willingness of the expert to overlook it in an effort to come to a favorable conclusion for his or her side of the case.

I once took a pad and easel and placed it next to the witness and wrote out each point that had been ignored during direct. It inevitably makes him look shifty rather than an unbiased witness.

Another common way to cross-examine the defense expert is by reestablishing your case. Force the expert to agree to uncontested facts. Cross-examining their expert on uncontradicted facts can be a powerful weapon. It is very important, during this type of cross-examination, to have one fact per question making sure that your question centers on that fact and that there is no escape for the expert with their response. Giving the expert two facts in one question can allow him to deny both facts when only one of them might be untrue. Stick to one fact at a time.

In addition, if there are holes in the expert's report by way of omissions or testimony not received or reviewed, take him through it. Information not reviewed by the expert that is favorable to your client can be extremely significant information. The closing argument has at its very root a successful cross-examination. Thus, when preparing for trial and cross-examination some of the themes you intend to use in the case should find its way into your cross-examination of the defense expert.

In a tractor-trailer case the cross- examination is no different than the cross-examination in any of the cases that you may be trying. However, like any specialty in the law, there are certain types of witnesses that you will encounter more often during the course of a tractor-trailer case than you would in the average automobile collision case. Although the "IME" doctor is found in many types of cases, the tractor trailer accident often pits you against a biomechanic, or an accident reconstructionist, both of whom may be an engineer of some type.

Dr. Defense

Sticking with the sound principles of cross-examination of the independent medical examiner, cross-examination of the doctor can allow you the opportunity to show that the independent medical examiner is not exactly "independent." Typically, there are three areas that we delve into in cross-examining the "independent" medical examiner. First, how often is he examining patients for defendants, second, the facts of the accident and third, those injuries that he will give up.

If you decide the doctor will give you favorable information about your client, it is usually best to establish that information with the doctor as soon as you begin the cross-examination. It is important to do this before you try to discredit him. If the doctor agrees your client was in fact hurt in the wreck, I believe it is necessary to immediately establish that ground: "Doctor, there is basically no doubt in your mind that Joe Smith was, in fact, damaged in this collision" Clearly, if the doctor gives you a favorable answer to that question that gets you beyond the causation issue of a non-suit.

Next, you should then take him through all the steps necessary to put "Humpty Dumpty" back together again. If surgery was necessary, walk him through the blood and guts of the operation. Talk to him about the risks associated with the procedure. How deep of an incision was necessary How was bleeding controlled. Take him through the painful physical therapy involved. Establish, again, the recovery time line.

The second area of cross-examination that we typically like to take the IME doctor through is, of course, the facts of the accident. Typically the factors in an accident involving a tractor-trailer can be quite frightening and often times horrific.

Often the "IME" doctor will only state that this was a motor vehicle collision without expanding on the gruesome details. This gives you an opportunity to repeat each one of those facts, on an individual basis, with the doctor. In addition, if the doctor omits that information from his report, you can then get a second bite at the apple by saying to the doctor, You didn't put that information in your report and you did not speak with the jury about that set of facts when you were questioned by defense lawyer on direct.This makes the witness look less than thorough and even biased by his understatements of the facts.

Ask each question, about each specific fact individually, one by one. For example:

Doctor, did you know that the tractor-trailer was going 40 mph when it hit my client"

Doctor, did you know that my client's vehicle was pushed 100 feet after impact

Doctor, did you know that my client left 100 feet of yaw marks on the roadway

Doctor, did you know that my client's windows were smashed out

Doctor, how much did the load the tractor trailer was carrying weigh

Doctor, what kind of car was my client driving when he was hit

Doctor, Isn't that only a compact (or mid-sized) car

As you can see, this gives you the opportunity to (a) put those facts before the jury one last time; and (b) damage the doctor's credibility because he was unaware of a set of facts. You are aware the expert knows these facts from reading his report. Caveat: If he claims he is aware, but doesn't have it in his report, never ask him, "Why" Just repeat each fact pointing out his obvious omission.

Finally, there is an area where we can all agree there is a great deal of fertile ground. It is in the testimony of the defense doctor who is consistently or repeatedly examining plaintiffs for defendants in lawsuits. Again, canvassing your local plaintiff's bar association, if it is a local case, and if it is a national case TrialSmith.com or a data bank at ATLA, you should certainly attempt to find everything you can about the defense expert doctor before he testifies. Calling plaintiff's lawyers in the town where he or she lives is an excellent source in learning his income as well as following up with researching him on the Internet. If you are fortunate enough to find out that the doctor is making significant dollars testifying for defendants then bring this out on cross. One doctor in my area was shown to be making over $700,000 dollars a year working just for defendants.

There are two sayings that I like to use in closing argument regarding defendant doctors: 1) He is getting wealthy off the backs of injured victims and/or, 2) to call him the 'juke box doctor, you simply put the money in, press the button, and he will sing whatever song you want."You then can continually call him "Dr. Juke Box throughout the course of the closing.

The Accident Reconstructionist

Discussion of the accident reconstructionist typically surrounds areas that we have already covered. Many of the previous techniques provided today can also be applied to the report and testimony of the accident reconstructionist. Several areas that were not mentioned and consistently arise during the course of the report of an accident reconstructionist is the perception, recognition and reaction time of the driver as well as the coefficient of frictions on the roadways. However, once again, in cross-examining an expert in these matters, I like to attack at the margins. The defenses accident reconstructionist and the defense lawyer like to limit the decisions made by the tractor trailer driver. This is done to keep the focus off the defendant. They want to increase the number of decisions made by your client, and therefore keep the focus on the plaintiff, your client.

One way to get the focus back on the defendant and his decisions, or failure of decisions, is by moving back from the accident scene a thousand feet. Photograph all the signs that appear warning of the intersection or of the cross walk. Move that driver back from the point of impact. Keep the focus on the decisions he made, or failed to make, such as slowing down at the time. The driver must, at all times, be aware of his increased need for space when attempting to stop or turn his mammoth vehicle. He must make careful use of his mirrors as well. He will have or should have been trained regarding these facts. He must maintain control of his vehicle. The defense reconstructionist will have to acknowledge this on cross.

If you have the manual the driver was trained from you can formulate questions directly from reading through it. Perception, recognition and reaction time dovetails nicely through use of the driver's manual. These are numbers that the expert will move around or change from case to case. Again, this can be discovered by thorough inquiry in TrialSmith.com or calls to other lawyers. Often times, the expert will use a questionable number just because it is favorable to the truck driver. They do this in their strategy so that the truck driver is closer to the point of impact when applying his or her brake, thus giving the defendant driver less time to react, and shifting the blame to your clients because they should have seen the "big truck" coming. You must be prepared with the ability to combat this strategy. Make him do the math using different numbers.

Parallel reasoning applies in cross-examination regarding perception, recognition and reaction. Suffice it is to say that old reports of these individuals or cross-examinations of other lawyers can be extremely valuable. If you can ever catch them using different numbers for different cases, they're in deep trouble.

The biomechanical engineer is another expert we consistently encounter. This expert is quasi-medical. His main goal will be to say the plaintiff couldn't be injured because of the forces of this wreck. The first area to cross the biomechanic, like the medical expert, is of course all areas of agreement. However, his or her really vulnerable area is a lack of medical degree. The expert's qualifications must be addressed including the expert's lack of certifications in any specialty. In addition, his or her lack of clinical training, professional training and educational training must be pointed out and exposed. Take the biomechanic through all of the qualifications of a neurosurgeon or neuropsychologist to show his lack of qualifications. Point out he has never performed surgery or been in an operating room. In fact, if he is in an operating room the only thing he is qualified to be is the patient.

Also contrast his opinion that the forces were not so great with the realities of the injuries themselves. Maybe his numbers say that your client should not have sustained a severe injury, but the medical reports tell a different story. Show x-rays if possible. Show exhibits. Use graphics.

Again I want to mention the advantages of Google. I have found that experts often brag on their web pages and solicit business through puffing up their abilities. I once found an expert whose web page boasted of how he helped defendants limit liability or damages and even lectured about his ability to sway juries. Other experts often talk only or primarily at defense seminars. Never hesitate to bring this up and point it out to the men and women sitting in judgment of the case.

Also, make sure that none of your expert witnesses have done the similar potentially damaging techniques before you put them on the stand.

In the end, cross-examination of experts boils down to attacking their credibility. If you can do this, you are a long way toward limiting or even eliminating the expert's impact.