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Seven tips for surviving cross-examination

Understanding the cross-examiner’s objectives can help an expert witness prepare to take the stand.

August 6, 2014
by Gary Birnbaum, J.D., and Vail Cloar

Editor’s note: This column is an edited excerpt of materials from the “Surviving Cross-Examination” presentation at the 2013 AICPA Forensic & Valuation Services Conference.

A wide variety of publications provide “rules” for the conduct of the expert witness during cross-examination and examples (real and hypothetical) of their application. All such lists have some value, but after reviewing even a few of these articles and texts, it is easy to come to the conclusion that the list of “rules” is potentially endless and their application in every case is virtually impossible.

However, by focusing on the cross-examiner’s objectives, it is not difficult to identify certain foundational principles that, if properly understood and applied, will allow the expert witness to at least “survive” even the most withering cross-exam. Here are seven guidelines, derived from many sources and substantial personal experience, designed to assist forensic and valuation services accountants who serve as expert witnesses.

1. Understand the expert’s role in the case.

Academic studies and anecdotal evidence indicate that juries place a good deal of faith in expert witnesses, and even judges are generally receptive to such testimony when the critical issues in a case are beyond the scope of their experience and understanding. But nobody wants another advocate. An expert who is willing to make concessions where necessary looks considerably more impartial than one who vehemently (and sometimes irrationally) resists every inquiry.

On the other hand, people do like educators/teachers. The appearance of an impartial educator with a professional manner can be invaluable. Establishing the character of the expert witness is a function of direct examination, but maintaining the same character and demeanor throughout cross-examination is critical. Losing at least the appearance of neutrality is a serious error. The attorney, not the expert, is the advocate of a client’s case.

2. Prepare.

Just as preparation is the key to a successful cross-examination, it is the key to surviving even the most carefully crafted cross-examination. As the cross-examiner will likely restrict his examination to questions to which he already knows the answer, it is simply not that difficult for the expert witness (and the attorney helping to prepare the expert witness for trial) to anticipate the thrust—and even the specific content—of the cross-examination.

Attorneys are often surprised by the number of experts who sincerely believe that their investigation and work product are comprehensive and that their conclusions are unassailable. Be humble. Identify the areas of potential attack so that they may be first addressed on direct examination. Be aware that even if the methods the expert used are sound, the cross-examiner may attack on other fronts, such as bias, education, or experience. Anticipating questions ahead of time and thinking through the answers to those questions goes a long way toward withstanding cross-examination. Arrogance is a fatal flaw.

3. Do not underestimate the cross-examiner.

A skilled trial lawyer prepares in ways that many professionals do not understand, and a review of an expert’s written work and prior testimony is one essential part of that preparation. Do not assume that the cross-examiner is too busy to personally review your work and that he had an inexperienced associate conduct the review. Similarly, do not assume that inconsistent prior testimony will slip under the radar. (Electronic databanks and public records requests make it quite easy to see what an expert has said in the past.) To the contrary, assume that the cross-examiner has, at least on the specific issue to be addressed at trial, developed an expertise equivalent to that of the expert witness and a knowledge of the relevant facts superior to that of the expert witness.

4. Control yourself.

Many of the so-called “rules” for expert witness testimony are merely common-sense observations regarding how to control the courtroom environment, or at least make it appear that the expert is in control at all times. For example, take nothing personally. Suggestions of incompetence or sloth may be designed to anger the expert or to destroy the professional air so carefully developed. Remain courteous but firm. Similarly, the expert should be prepared to testify about his or her hourly rate and the total cost of his or her work. The expert should not be embarrassed by, or defensive about, the level of compensation, particularly if the expert has successfully imparted to the jury on direct examination the full scope of the expert’s work and the time required to do the expert analysis properly.

5. Do not try to “win” the case.

A perfectly conceived cross-examination may result in the expert answering “yes” 20 or 30 consecutive times and then leaving the witness stand. So be it. While certain experts insist on occasionally adding a rejoinder such as “Would you like me to explain?,” such a comment is not likely to advance your cause. The cross-examiner will politely decline your invitation and suggest to the expert witness that “your attorney” will have the opportunity to question you again, if appropriate, on redirect examination.

6. Understand the role of redirect examination and closing argument.

No matter how poorly cross-examination may go, a properly prepared attorney may be able to repair most of the damage on redirect examination. This is why communication is so critical. If the attorney who engaged the expert knows the areas that will be hit the hardest on cross-examination, the attorney can plan damage control ahead of time and address various areas of concern during direct examination.  But even if this approach fails, redirect examination (and ultimately closing argument) is available to triage any injuries sustained.

7. Choose your words wisely.

Generally, the expert should not volunteer information or stray from the specific subject presented. The expert should not assist the questioner when he appears confused or uneducated—such ignorance is often feigned. The expert should generally avoid absolutes (such as “always” and “never”). The expert witness should not be reluctant to say “I don’t know,” “I don’t recall,” or when appropriate, “I did not analyze/investigate/explore/address that matter as it was outside the scope of my assignment.”

Successful cross-examination often follows widely accepted guidelines. Those guidelines can be reviewed, understood, and effectively reverse-engineered. The result is a set of guidelines for the conduct of the expert witness. Adherence to these guidelines maximizes the likelihood that the credibility of the expert and his or her conclusions, so carefully developed during direct examination, will survive the tribulations of cross-examination.

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Gary L. Birnbaum is a senior litigator at Dickinson Wright PLLC in Phoenix. Vail Cloar is a law clerk with the Arizona Supreme Court.

For more tips on developing and enhancing the skills necessary to be an effective expert witness, and learning how to confidently and effectively communicate with the jury or trier of fact through practice and critique by industry experts, attorneys, and experienced judges, register for the AICPA Expert Witness Skills Workshop in Washington, Sept. 11–13.