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Direct Examination: Questioning Your Own Expert Witness

Direct examination of an expert witness by the attorney who called the witness allows the attorney to establish the expert's qualifications and ensure their testimony supports the case theory. The attorney should lead the judge and jury clearly through the expert's opinions and basis. Preparation is important for cross-examining an opposing expert to explore facts inconvenient to the other side's position by knowing the case facts well. Cross-examination provides an opportunity to undermine the opposing expert's credibility.

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63 views

Direct Examination: Questioning Your Own Expert Witness

Direct examination of an expert witness by the attorney who called the witness allows the attorney to establish the expert's qualifications and ensure their testimony supports the case theory. The attorney should lead the judge and jury clearly through the expert's opinions and basis. Preparation is important for cross-examining an opposing expert to explore facts inconvenient to the other side's position by knowing the case facts well. Cross-examination provides an opportunity to undermine the opposing expert's credibility.

Uploaded by

mario navalez
Copyright
© © All Rights Reserved
Available Formats
Download as DOCX, PDF, TXT or read online on Scribd
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Direct Examination: Questioning Your Own Expert Witness

Direct examination involves an attorney questioning their own expert witness.


The advantage of direct examination is that the attorney has (hopefully) met or worked
with the expert prior to trial. During this collaborative preparation, the attorney has the
opportunity to explore the expert’s opinions in depth, confirm that the expert’s opinions
are inline with their case theory, and help the expert witness refine their testifying
techniques.

These advantages, however, do not mean that direct examination of an expert


witness is easy or should be taken lightly. Throughout direct examination, focus on
specific goals: To prove your case, to craft a compelling narrative, and to build trust
between the fact-finder and your expert witness.

Because the Federal Rules of Evidence and corresponding state rules require an
expert witness to be recognized as such before they are allowed to render opinions, the
organization of your direct examination is crucial.

Direct Examination Tips


Begin with your expert’s qualifications. Consider how these qualifications
establish their position as an expert and help to build the story that supports your case
theory. A dry list of degrees earned or jobs worked is likely to bore a jury. A well-
crafted exploration of credentials, however, can help a jury appreciate or even admire
an expert as one of the top minds in their field.

Once the witness is qualified, direct examination should lead the judge and jury
clearly through the expert’s opinions and the basis for them. If there are obvious
avenues of attack on an expert witness’s opinion—such as two clearly conflicting
methods of analysis or an expert’s long history of appearing in similar trials—consider
addressing them on direct examination. Doing so will help show the jury that your
expert has nothing to hide and can actually boost credibility when done well.

Prepare your expert to summarize their conclusions at the end of direct


examination. Consider using visual aids to boost the jury’s memory of these conclusions
and the key facts that led to them.

Cross Examination: Questioning an Opposing Expert Witness

On cross-examination, an attorney typically questions a witness presented by the


opposing party. An opposing party’s expert witness can be expected to have offered
opinions and conclusions that favor that party’s view of the case.

Cross-examination provides an opportunity to bring up facts that are


inconvenient to the opposing party’s position, which are often elided during direct
examination. The primary difficulty in cross-examining expert witnesses, however, is
that the expert has far more knowledge and expertise in the technicalities of the subject
matter than the attorney does.

While an attorney cannot reasonably be expected to know an expert’s field as


well as the expert, an attorney should know the facts of the case as well as, or better
than, the expert. Since an expert’s opinion is limited to the facts of the case before
them, a strong knowledge of those facts will allow an attorney to delve deeply into how
the expert’s opinion applies (or doesn’t) to those particular facts.

Cross Examination Tips


Preparation is crucial. For example, during depositions, ask for any studies or
research the expert mentions, and read them. Like case law, a scientific study may at
first appear to be “on all fours” with an expert witness’s opinion, but on closer
examination may be limited by the design of the study or may even come to
contradictory conclusions. Asking open-ended questions during depositions or pretrial
meetings can also help an attorney assess an expert’s demeanor, speaking style, and
other factors that affect credibility and comprehensibility from the jury’s perspective.

With a clear understanding of the facts and the expert’s foundation and


approach in mind, consider whether one or more unconventional tactics can effectively
communicate key themes in cross-examination to the jury. For instance, use of visual
aids can help jurors remember key points.

Using an expert’s visual aid during cross-examination can be particularly


valuable. Imagine, for example, an expert who writes out their key findings on a
whiteboard, only to face an attorney who writes out key weaknesses, exceptions and
caveats on the same whiteboard as these are revealed in cross-examination.

By knowing the facts well and exploring key avenues of weakness, attorneys can
perform effective cross-examination of opposing experts while also underscoring the
credibility of their own expert witness. This two-pronged approach can be extremely
effective in persuading the trier of fact to see the case from the point of view most
favorable to your client.

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