By Robert T. Szostak, Esquire
EXPERT WITNESS CROSS EXAMINATION: RULES TO LIVE BY
1. Evaluate the expert's C.V. line by line.
2. Independently investigate the qualifications, background, employment history and experience of the expert.
3. Learn about the expert's reputation.
4. Independently uncover and review any writings of the expert.
5. See if the expert has his/her own web page and do internet searches.
6. Explore the extent to which the expert engages in clinical practice, teaching or other related activity.
7. Evaluate the "fair" scope of the expert's report.1
8. Determine whether the expert is Section 512 Qualified. If not, file a Motion in Limine to preclude the expert and for a 512 Hearing.2
9. Determine whether the expert's opinions meet the Frye standard. If not, file a Motion in Limine to preclude the expert and for a Frye Hearing.3
10. Independently investigate the history, opinions and testimony of the expert in other cases to assess his/her interest, bias, prejudice or partiality concerning matters about which he/she is to testify.
11. Ascertain whether the expert is a "hired gun", biased toward plaintiff or defense or truly an "expert's expert."
12. Do your Mohn homework by knowing the expert's relationship with counsel, his/her firm, expert fees or other compensation and whether counsel ever represented the expert or those in his/her practice.4
13. Employ listservs and network with other attorneys for information on the expert.
14. Prepare, Prepare, Prepare.
15. Planning makes cross powerful.
16. Know the details of the case and the medical record.
17. Research and know the medicine involved in your case.
18. Confer with your own expert about medical issues raised in your case.
19. Do not allow your client to control your cross.
20. Think ahead to know the pitfalls of your case.
21. Write down the points you need to make with an expert witness, and build your cross around them in a way that will be understood by the jury.
22. Determine whether the points to be made bolster your case, weaken the opposing case or both.
23. Develop an organized and effective cross examination outline, keyed to the points you must make, and cross‑referenced to any records, written reports, transcripts, internet postings, "learned treatises" and other demonstrative evidence.
24. Streamline.
25. Review your cross examination with others in your firm.
26. Know the rules of evidence.
27. Prepare for any anticipated legal issues during cross.
28. Find out as much as possible about the presiding judge and his or her individual rules, propensities, rulings and courtroom management style.
29. Formulate in your mind what favorable testimony you can reasonably expect to gain from the expert.
30. Ask direct, short, simple questions using plain English geared to the listener.
31. Use open ended questions very judiciously to avoid opening the door for the witness to explain and tell his or her view as opposed to your perspective (i.e., Do not ask the witness: "Why?").
32. Take control - ask only leading questions, making sure the questions take you where you want to go with little room for the witness to deviate.
33. Confirm favorable facts and findings.
34. Always cross on qualifications before the expert testifies on direct.
35. Avoid being repetitive.
36. Do not belabor a favorable answer by trying it again - you may afford the witness an opportunity to cure.
37. Know the answer to every question you ask.
38. Do not make a "blind inquiry".
39. Listen to the answer given and respond with appropriate follow up questioning necessary to make your point with the jury.
40. Control yourself and be yourself.
41. Control the witness, but engage the witness based on the type of witness you expect to confront (i.e., academic, seasoned, "mercenary", "virgin", liar, reputable, advocate, honest, etc.).
42. Good cross examiners exude confidence, not arrogance.
43. Jurors understand a tough examining style; they reject mean‑spirited people.
44. Do not cross on areas that would offend the sensibilities of the jury.
45. Do not get mad or quarrel with the witness - let the witness appear "hostile" as you professionally make your points from a position of strength.
46. Avoid arguing with the witness - again, keep control of the adversarial process.
47. Be ready to adapt as your cross examination proceeds.
48. Persist in attaining your objective; if an objection is sustained try a different approach.
49. If your position has been hurt, never show it.
50. Move to strike unresponsive answers.
51. If necessary, ask the judge to insist that the witness answer the question presented and only the question presented to maintain control.
52. Know your audience - if your questions are too technical, you may win on appeal, but you will likely loose your jury.
53. Confront the factual basis for the expert's opinions.
54. Identify and establish that a learned treatise (journals, texts or publications) is "authoritative", "reliable authority" and/or "standard work in the field",5 and use such treatise to impeach the expert witness on cross by challenging the credibility of the witness' opinion and the weight to be accorded to it.6
55. Reserve your "sure fire" point for last and know when to stop.
1Pa. R. C.P. 4003.5(c).
240 P.S. §1303.512.
3Frye v. United States, 293 F. 1013 (D.C. 1923), adopted by the Pennsylvania Supreme Court in Commonwealth v. Topa, 369 A.2d 1277 (Pa. 1977). See also Grady v. Frito‑Lay, Inc., 839 A.2d 1038 (Pa. 2003)("Frye continues to provide the rule for decision in Pennsylvania").
4Mohn v. Hahnemann, 515 A.2d 920 (Pa. Super. 1986)
5The authoritativeness of a publication is proven by having (1) your expert witness acknowledge the authority or reliability of the treatise, McDaniel v. Merck, Sharp & Dohme, 533 A.2d 436 (Pa. Super. 1987); (2) another expert witness acknowledge that the publication is authoritative, Nigro v. Remington Arms Co.,637 A.2d 983 (Pa. Super 1993), appeal dismissed, 655 A.2d 505 (Pa. 1995); and/or (3) the court take judicial notice that the treatise is authoritative, Pa. R.E. 201(b).
6Aldridge v. Edmunds, 750 A.2d 292 (Pa. 2000); Burton‑Lister v. Siegel, 798 A.2d 231 (Pa. Super. 2002); McDaniel v. Merck, Sharp & Dohme, supra.; Majdic v. Cincinnati Machine Co., 537 A.2d 334 (Pa. Super. 1998).
