Succeeding As an Expert Witness : Increasing Your - Softcover

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A. Feder was a trial lawyer with 35 years of trial experience. Many of his cases involved the use of expert witnesses. Feder was a Fellow of the American Academy of Forensic Sciences, the International Society of Barristers and the College of Law Practice Management, and past president of the Colorado Trial Lawyers Association. He lectured and wrote extensively on expert testimony, trial technique and practice management throughout the U.S. and Canada for over 20 years.

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It is a monumental undertaking to write a book on a subject that crosses many disciplines to improve the role and function of the expert witness. Harold Feder is to be congratulated for the effort.

Harold Feder has hit a home run with Succeeding As An Expert Witness ... Feder's book is a practical guide for the forensic expert ... The book walks the expert through the entire process, from a potential retainer through the conclusion of the case ... It includes a wealth of information in a comprehensive set of appendices ... Feder's book is quite valuable for experts and lawyers alike. I certainly intend to buy some additional copies and send them to my experts.

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The following is taken from Chapter 21:

THE CHALLENGE OF CROSS-EXAMINATION
INTRODUCTION
There are some specific things you can do to prepare yourself for cross-examination. Most obvious are those which have been previously discussed in this text. All those devices and ideas serve to enhance your credibility as an expert witness. As your credibility is enhanced, cross-examination threats are diminished.

BECOME LESS VULNERABLE
There are specific things you can do to make yourself more ready and less vulnerable to cross-examination.

PUT YOUR HOUSE IN ORDER
Your resume must accurately reflects what you have actually accomplished, not what you wish you had done. Do not exceed the bounds of your own expertise. In taking on assignments and in answering questions, do not venture beyond the areas in which you are professionally qualified. The temptation is great to move into areas in which you are not qualified. Your image and credibility will be enhanced by sticking to your field of knowledge, training, and experience.

YOUR PREPARATION MUST BE COMPLETE
Whatever investigative steps you have taken must be completed and fully documented. The thoroughness of your preparation to testify will be exemplified by your direct examination. Accurate investigation creates a dense fabric of fact which becomes difficult to penetrate on cross-examination.

MAKE YOUR DIRECT EXAMINATION PERSUASIVE
If you are believable and you have done your homework, your persuasive abilities will be obvious.

Psychological persuasion conveyed by body language, repetition of theme, dress, and demeanor all add to your positive posture. The smooth, solid presentation you made on direct examination must be maintained throughout cross-examination. When the examiner asks a potentially damaging question, use the same air of certainty that you evidenced on direct examination. Say, "Yes that is correct, but let me explain." This does two things. First, you have told the attorney who hired you to come back and ask you to explain. Second, you have shown your credibility in a forthright, nonapologetic manner.

Witnesses who are certain of their own effort and preparation are questioned cautiously on cross-examination. The cross-examining attorney quickly senses your truthful and positive answers.

EXERCISE YOUR ABILITY TO TEACH
Part of the stimulation of a classroom setting is the ability to field questions from students. The skill with which those questions are responded to is often the mark of a great teacher. Your function as a dispute-resolution teacher is merely an extension of that exercise. The cross-examiner who probes your qualificationss, preparation, conclusions, and opinions will press you for answer.

KNOW WHAT YOU HAVE PREVIOUSLY WRITTEN OR SAID
During your professional career, you might have written articles, books, or reports. In addition, you might have testified in deposition or at trial on prior occasions. Your personal library should include reprints of every article you have ever published and every deposition or court transcript of your testimony ...

... KNOW THE EXAMINER'S GOALS

Professor James W. McElhaney suggests eight fundamental techniques used to cross-examine an expert witness:

- Make the expert your witness; turn the testimony to support the opposite position
- Attack the field of expertise; show lack of recognition of the professional field
- Attack the witness's qualifications; establish gaps in the professional resume
- Expose the witness's bias; give reasons why testimony is slanted
- Attack the witness's fact basis; investigation was inadequate
- Change the hypothetical used on direct; vary the facts to support the opposition if use of the hypothetical question is the basis for expert opinion
- Impeach the witness with learned treatises and journals; any recognized text, authoritative in nature, can be used to cross-examine
- Attack the witness head-on ...

... REDUCING VULNERABILITY TO CROSS-EXAMINATION

Certain areas of weakness attend some expert testimony. Those areas will certainly be the grounds for attack by a cross-examining attorney. Knowing the areas of jeopardy will help you prepare in advance for the cross-examination.

1. Is your opinion based in whole or in part on judgment as opposed to measurable fact? It is always proper for cross-examination to probe the basis for your well-established conclusions. If that basis is technical and scientific testing, you will not be vulnerable. However, if subjective judgment and opinion are the sole basis for your opinion, you are vulnerable.

Consider two examples.

a. A chemical test involves mixing a compound and then adding a measured number of drops of reagent to turn the compound from pink to blue. The exact number of drops necessary to cause the color change constitutes a specific scientific measurement. No judgment or opinion attends this test. The results can be documented with laboratory protocol and photographs.

b. Valuation of motor vehicles requires an orderly examination of each vehicle against a fifty-point checklist. Each item on the checklist is graded from one to ten. Each of the fifty items requires judgment based upon observation. True, an expert's observation is more valid than that of the average person. However, "judgment" is the key word. This valuation would be considered a major area for cross-examination.

2. Is your opinion based upon input from others? You are to testify as an orthopedic surgeon. The issue is the extent of a fracture sustained in a fall. The radiologist's report suggests to you a compound comminuted fracture with thirty bone fragments at the fracture site. You testify to that effect. However, by cross-examination it is established your testimony is based on the radiology report. As an orthopedist, you may not be able to identify thirty bone fragments from the x-ray, but ordinary practice allows you to rely on the radiologist's report. You must be ready to defend your reliance as customary in your field.

3. Have you made prior inconsistent statements? The questioner will ask about whatever you have written and testified to in the past. Aggressive cross-examining counsel will comb those written material for inconsistency.

4. Does your behavior suggest hand examining attorney will observe you carefully. If you have your hand near your mouth or face, you may be withholding information, according to the attorney's way of thinking. If you flush or your hand trembles, you may feel insecure. If you hesitate and stammer or fumble through papers and files, you may feel a lack of confidence in your own ability. Skillful examining attorneys sense a weak, inadequately prepared, or unsure witness. When that sixth sense is activated, they will move in for the kill.

5. Are you in control? The basic tenet of cross-examination is control of the witness. Therefore, you must stay in control. You must attempt to avoid being led by the cross-examiner. A pattern of yes/no questions and answers should warn you that the examining attorney is attempting to control the situation. But You have another option besides a "yes" or "no" answer.

QUESTION:
Mr. Expert, isn't it correct that traffic lights sequence green to yellow to red?

The easy answer to the question is "Yes," but the better answer is "Yes, in most cases, unless there is a malfunction." In this way, you have avoided the trap of a yes/no answer ...