Kentucky

Continuation of presentation and notes from seminar from Kentucky Justice Association and  Kentucky Defense Counsel on Trial Techniques & Strategies.

Plaintiff's Strategy on Direct and Cross-examination of Expert Witnesses

• Quotes
  • It's all about preparation.
  • Preparation. Preparation. Preparation.
  • Preparation is the key to all that we do in the courtroom.
  • Convince the judge of your preparation.
• Keys to Effective Direct Examination
• Purpose is to pursuade and not impress.  See Aristotle, The Art of Rhetoric and Rhetoric (Aristotle) - Wikipedia, the free encyclopedia
  
  • Ethos - establish credibility of the speaker
  • Pathos - give jury a reason; emotional appeal of speaker
  • Logos - logic of position
• Cross is more fund and dramatic but direct makes out the elements of the case.  Don't hold anything back.
• Qualifyig the expert.   If not qualified, not testify.  Going through the CV.  Stipulating to the qualifications.
• Your expert must understand the elements of the case.  Don's assume he knows or understands.
• Examiner should be invisible.  Make the expert the teacher, the authority.  Use verbs like "teach".  Love it when the judge asks your expert a question!!!  "The" legal authority in the courtroom is relying upon YOUR expert.
• Bridge one questioj to next area for continuity.  Maintain the logic and the flow.
• Listen to answers!  Avoid rigidity and don't be locked into scripts. 
• Preparation.  Know facts, witness, and the law.
• Keys to Effective Cross-examination
  • Preparation
    • You cannot be hurt by the answer.  Only time can be hurt at discovery deposition is unasked question which is asked to your detriment at trial.
    • Neil Patterson - one (basis for conclusions).  Get all the details, the basis, and the facts upon which they rely on their conclusions.  {I call this fencing him in and pegging him to his facts.}
    • Be forceful, not rude.  Proper tone.  Imperative since jurors want you to be respectful {Mike S.  cross does not mean angry examination}.   See Rules of the Road and Polarizing the Case for some analysis of this.  Serious and respectful; not funny or flip. 
    • Special treatment for elderly.
  • Cross
    • Simple questions
    • Be the authority, and ask the content with witness agreeing.
    • Elicit agreement. 
    • Be in control.
    • Bias and prejudice.
    • Prior relationship with counsel.
    • Have a purpose.  If not hurt, don't cross.
    • Quit on a srong point.
    • Quit while you are ahead. 
    • Don't ask one question too many,  Eg., Irving Younger's one question to many example of Waldoft Astoria deskclerk on large number of people passing through front desk and should not remember this one out of millions.  Well, how do you remembe him?  He was the only one who held a gun to my head.
  • Pseudo cross
    • Discuss testimony
    • Discuss qualifications
  • Prepare, persuade and practice
  • My Cousin Vinny example
  • "Keep them under control, lead them along, and as elegantly, quietly as possible, destroy them".  or words to that effect from Sir Geoffrey Lawrence

Defendant's Strategy on Direct and Cross-examination of Expert Witnesses

• Selection is key.  Which type?  The experienced who has a track record or the practitioner?  Get the CV. Prior depositions, articles, Daubert challenges?, books and other prior written materials, etc. 
• Send all the documents, all the records to expert for review.  More is better than less.  Keep an inventory of documents sent which may be lost and need to be resent later in a long and lengthy case.  No need for them to find something they did not have but supplementing in front of jury.
• CR 26 and disclosures.  Formerly response was brief, but now increasing in content and depth and detailed.
  • Supplement the answers!
• Researching medical literature as learned treatise.  Read footnotes.
• Format of direct examination.
  • In medical negligence cases, run risk of losing jurors by spending too much time on qualifications.  Try introducing juror, asking issues to consider and what are his conclusions.  {MIKE:  I prefer a little intro on the credentials, then follow up at end on litany of qualifications.}  Credentialing is critical, but don't get lost in the CV.  Eg., lectures example of impact question:  Who was the first person on the planet to perform this procedure?  I was.  BAM!
  • Stylistic considerations
    • Avoid leading questions, even though judges may let you get away with it.  But bad habit.  {MIKE S.  Lacks credibility and misfocuses attention of answer}.
    • Using "topical" headlines works.
    • Beware of the softspoken expert.  Fireballs at deposition, but ghost whisperers at trial. Standing far away to force them to talk louder.  Besides its not about you, but rather the expert.
    • Be a respectful consumer of the juror's time who are away from families, friends, businesses, and other responsibilities.  A. Lincoln once apologized for length of a letter but noted he had no time to write a shorter one.
    • No hard and fast rule for length. 
  • Google the experts.  Yours and theirs.  Example, of a Googled expert who showed up on a search as a candidate for public office with an interesting web site.
• Cross-examination
  • Discovery deposition.  Prepare. Get points for concessions.  If not agreeing to medical acceptable stuff, then might be able to impeach.  Use data bases on the expert for depositions to compare and contrast testimony (also published articles).  Don't forget their "boards" requirements and guidelines for testifying.
  • DRI/Idex
  • Web sites soliciting lawyers for business
• Structure of Cross-examination
  • Start with strong simple points for concessions
  • Bring out areas of divergence and/or controversy
• Credibility and bias
  • Prior expert work
  • Volume of work and court appearance
  • Percentage of work for one side or the other
  • Frequency of finding deviaitions
  • Advertising services
  • Super-specialist vs. generalist

Jury Consultant's Comments

• Both sides usually have equally qualified experts
• Experts usually say the opposite of what the other side's expert says
• Experts usually are only believed when they say something that hurts the case they are trying to help.
• Sometimes ignored.
• Competence vs. expertise; character vs. trustworthiness; sociability vs. likability; composure vs. nervousness; extroversion vs. outgoingness.
• Have backup technology.  Jurors like tech; judges like tech.

Thanks to Marc Weingarten, Clayton Robinson, and Dr. Stuart Miles.

• Jurors are frustrated by experts since studies of jurors show believe can always dig an expert up, will say what lawyer wants, more they charge the more expert is suspect.
• Jurors are poor lie detectors; look at cadence, nervousness, head gestures, cues to attorney.
• Competence and expertise; character trustworthiness, socialibity and likeab ility; compsure nervousness, extroversion and outgoingness

Thanks to Mark Weingarten, Clayton Robinson and Dr. Stuart Miles.