Direct- and Cross-Examination of Expert Witnesses: A Different, More Effective, Approach

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1 ALI-ABA Course of Study Opinion and Expert Testimony in Federal and State Courts Sponsored with the cooperation of the Federal Judicial Center April 15-16, 2004 New Orleans, Louisiana Direct- and Cross-Examination of Expert Witnesses: A Different, More Effective, Approach By Ralph Adam Fine Wisconsin Court of Appeals Milwaukee, Wisconsin

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3 DIRECT- AND CROSS-EXAMINATION OF EXPERT WITNESSES A Different, More Effective, Approach Presented By Ralph Adam Fine Judge, Wisconsin Court of Appeals ralphadamfine@win-your-trial.com 2003 Ralph Adam Fine The traditional presentation of expert-witness testimony uses the witness as a teacher someone whose testimony will, in the words of Rule 702 of the Federal Rules of Evidence, assist the jury to either understand the evidence or determine a fact in issue. Thus, the witness has center stage, and the case will often turn on whose hired gun is best able to persuade the jury. Indeed, some federal judges prevent the expert witness from testifying on direct-examination, and, rather, make the lawyer presenting the witness read to the jury the witness's report. In my view, this prevents the lawyer from effectively representing his or her client. A trial is not a class-room lecture, and jurors are not in court to learn. A trial is your battle for your client, and the jurors are those whom you must persuade. Persuasion is the trial lawyer's job, not the job of any witness. Wigmore called cross-examination the great engine for getting at the truth. And so it is. It is a powerful tool because the witness understands that the jury is answering the questions before he or she answers. Thus, the witness knows that the answers had better conform to what the jury knows to be true. The same dynamics can be used to make the direct-examination of every witness, including the expert witness, persuasive and invulnerable to effective cross-examination. Strategy: Use what the jurors already know before they hear any of the witnesses. Then build on this foundation of pre-trial knowledge to win your case through the expert witness; that is, use the witness to validate the points you need to make on direct-examination. You must start far enough back in the logical train so that either: the jury knows the answer before the witness responds, or the answer rings true.

4 You must not abdicate to any witness whether expert or lay your role as your client's advocate; you must never ask: What happened next? (or one of its many clones). An Example: The following is an excerpt from John Grisham's The Runaway Jury. We pick up the story where the plaintiff's lawyer is having the witness, a former high-level tobacco-company employee, describe a long-missing document that purportedly showed that the tobacco companies in the book knew that nicotine was addictive. 1 And the next paragraph? A The writer suggested [to the president] that the company take a serious look at increasing the nicotine levels in its cigarettes. More nicotine meant more smokers, which meant more sales, and more profits. Powerful stuff to be sure, and Grisham meant it to be that way. But it flies right by; many of the jurors will miss all or some of it. Look how much more powerful it is if the lawyer does not ask a what happened next? type question, but breaks down the components instead of letting the witness dump them all on the jury in one large package. Remember, not all jurors are paying attention all of the time. Additionally, notice how either: 1) the jury knows the answers before the witness responds; or, at the very least, 2) the answer rings true. In fact, we do not even need to see the answers. Did you read the next paragraph as well? What was the subject of that paragraph? Did the writer of that memorandum suggest that the company do something about the nicotine levels in the cigarettes it was 1 Grisham acknowledges the potential best evidence rule problem. 2

5 making? Did the writer suggest that the nicotine levels in the cigarettes be increased or decreased? Did the writer tell the company's president how increased nicotine levels would affect the number of people who smoked? Would increasing the nicotine levels in cigarettes mean more or fewer smokers? More smokers than if the nicotine levels were not increased? Would this mean more or fewer sales? Would this mean more or less profit for the company? Would the profits be substantial? Doing it this way accomplishes three main things: First, the jurors know the critical answers before the witness responds. This cements in their minds these building blocks of the lawyer's argument, without relying on their assessment of the witness s credibility. Second, the logical connection between increased nicotine levels and higher company profits is made in small, incremental steps. The jurors are not forced to digest the entire package in one question and answer. Jurors fade in and out; you do not want the critical points to be made in your case when some of the jurors are thinking about something else. Third, doing it this way, rather than as Grisham has it, permits the lawyer to repeat the good stuff. No juror will be inattentive through the whole series, and thus no juror will miss this phase of the lawyer's argument. 3