![Cross-Examination Communication Tips]()
This article is written for both lawyers and non-lawyers
The techniques I share work both in the courtroom and boardroom. You can use these tips to win your next trial or close an upcoming business deal.
When you are confronted by an “expert” for the other side, do what I do. Smile and use these proven approaches to achieve success.
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In almost all trials, lawyers need to cross-examine the other side’s expert witnesses. There are 8 ways this can be done and depending on the issues and experts, good trial lawyers will approach this task using one or more of these methods.
YOU: Outside the courtroom, you can and should do the same thing when dealing with the other side’s expert. When I use the term “expert” in this article, I’m referring to the person of influence to the other person you are trying to negotiate with (the decision maker). The other side’s expert may also include the decision maker’s consultant, confidant, and even a significant other at home.
Approach #1: Make the Expert Your Witness
In most of my catastrophic injury cases, the defense attorneys hire medical experts to take the stand and testify that my client’s injury is either not as serious as we are alleging or, that the injury is serious but was not caused by the collision or incident. In these situations when I have an expert who agrees with the severity of the injuries but disputes the cause, here’s how I handle things.
I focus a majority of my questions on the issue we both agree on—the severity of the injuries. I ask the other side’s expert to share with the jury his understanding as to how the injuries have harmed my client and will continue to do so for the rest of his life. I take my time and do so in detail. I leave no stone unturned.
With this particular witness, I completely avoid wasting time trying to cross-examine him about how the injuries occurred. I do show my jury that the expert wasn’t present during the incident and the only information this expert has was provided directly to him by defense counsel (see #5 below). I use other witnesses and experts to fill in the blanks and to tell my clients story as to causation.
YOU: In your next sales presentation, the decision maker’s expert may like your product but not the purchase expense. While she may see the benefit of the value of your product or service, she may also believe any such benefit is outweighed by the cost of purchase or expense of implementation and ongoing maintenance.
When this happens, you should focus your conversation with the decision maker to what you both agree on. For example, if the decision maker’s expert agrees that the benefit will help lower costs and increase production, then it’s important to focus on these two issues and all the benefits relating thereto. Emphasize these agreed to facts in your presentation to the decision maker. Save the cost of purchase or implementation and other money issues for another time or other people. It’s a process so take your time and focus on things you agree on to gain credibility and leverage.
Approach #2: Attack the Expert’s Field
During trial, just because the other side decides to put a person on the stand and call him an “expert” doesn’t mean the jury is required to accept the fact that he or she is truly an expert in that particular field.
For example, let’s say the defendant in one of my cases calls a UFO expert to the stand. I’ll usually start my cross examination with asking the expert, “Should I call you Mister, Doctor or something else?” Depending on his credentials, I may ask if he has some kind of degree in UFO studies and if so, from what college or university? I ask a series of questions showing the jury that it’s completely up to them to determine whether or not this person is really a UFO expert as claimed by the defense attorney.
This happens more than you think (for example, a doctor may be asked to testify as to the force of impact in a collision) and so it’s perfectly OK to confirm for our judge and jury that the field or scope of testimony make lack merit.
If you use this approach, make sure to separate the person from the issue. You can be polite to the other expert while attacking his or her suggested field of expertise. Personally, I believe this is key to successfully using this particular approach.
YOU: Many times outside the courtroom, the person creating a roadblock to closing the sale is someone without any specialized education or knowledge in support of their negative opinions. Spouses and original founders and owners many times try to influence decisions based upon emotion and tradition rather then facts and details. Understanding this can allow you to carefully adjust your presentation to deal with the underlying issue and present sufficient arguments to allow the decision maker to comfortably appreciate where you’re coming from.
Approach #3: Attack the Expert’s Qualifications
I once represented a family in a high profile case involving the death of their son who had drowned in a local lake. The primary issue had to do with whether or not the lifeguards on duty were negligent.
During my initial investigation, I contacted one of the top lifeguard experts in California to see if he would be interested in serving as an expert witness. As things turned out, he was personal friends with several of the lifeguards on duty at the lake where the drowning occurred. He told me because of his bias, he probably wasn’t the best person for the job.
I asked him who he would hire if he was in my shoes and needed to find the best lifeguard expert in the country. He immediately shared the name of the “top and most quailed” expert who we ended up hiring.
During litigation and about a year later just before trial, I found out that the defense attorneys ended up hiring the very same lifeguard expert I first contacted. This was the same guy who told me to hire the expert I eventually hired.
While questioning the defendant’s expert during his deposition and under oath, I elicited all of his opinions which were different then the opinions of our nationally recognized expert. Once I was all done doing this, I then asked the other side’s expert who he felt was the most qualified and most well respected lifeguard expert in the country? As you may have already guessed, he stated the name of my expert. He then went on to share the fact that the primary lifeguard reference safety book he often relies upon as a lifeguard expert was the very book written by my expert. We ended upon winning the case because our expert’s qualifications were better than the other side. I knew it, the defendant knew it, and the defendant’s expert even admitted it.
YOU: Always find out who the other side’s expert is and research and review her qualifications. If the expert is a different person than the decision maker, politely and professionally use any deficiencies to tactfully place a wedge between the decision maker and the opinions shared by his expert (I was always polite and professional while handling the above lifeguard example). In many instances, once the other side’s decision maker appreciates the fact that his expert lacks certain fundamental qualifications, the question isn’t if you’re going to close the deal but when and for how much.
Approach #4: Expose the Bias of the Other Side’s Expert
In trial I usually make it a point to show the bias of the other side’s expert. This normally includes things like, how many times in the past has the defense attorney hired this particular expert? How much money has the defense attorney paid the expert? How often is the expert hired each year by defense attorneys to testify in court? How much time is spent each year by the defendant’s expert testifying in trial as opposed to treating patients in an office? What percentage of his income comes from treating patients as opposed to being a paid expert?
I recently finished up a trial where the defendants’ expert testified he was paid more than $16,000 during the course of the case. To put things in perspective, my expert had only billed $2,500 to prepare and testify as to the same issues.
During the trial, the defendants’ expert shared an opinion from the witness stand that was unbelievable. The sworn testimony was so contrary to common sense that I noticed some of my jurors roll their eyes.
Why did he say what he said? Was this expert being objective and truthful or was this expensive and paid for biased testimony?
In response to this ridiculous testimony and to show the jury that defendant’s expert was biased, I questioned the expert about his comments and then remembering how much this guy had been paid asked, “Isn’t it true Mr. X that you have 16,000 reasons to tell the jury what you just told them?” As reflected in their million dollar verdict, the jury knew this expert was trying to blow smoke where the sun doesn’t shine.
YOU: Information provided to the other side’s decision maker by a competitor is probably being presented in a skewed and biased fashion. Expose the misinformation to gain credibility with the decision maker.
If your competitor is sharing inaccurate information with a potential customer and you expose this as fact, why in the world would the decision maker ever want to do business with your competition? Why would the decision want to enter in to a long-term relationship with someone who started things off using with a lie.
In corporate America, decision makers almost always make quarterly decisions based upon increasing the wealth of shareholders versus improving product, services or safety. Understanding this different type of bias will allow you show the decision maker how and why, over the long term, value can be increased by improving safety and decreasing injury claims associated with a problem product. This is just one example but the concept applies to most products, services and industries.
Approach #5: Attack the Other Experts Facts
While testifying from the witness stand, the other side’s expert often basis his testimony on facts provided to him by the defense attorney. He’s never met or interviewed my client or any of the witnesses in the case. He’s never been to the scene of the incident or met with any of the investigators for either side.
Because of this, I usually get the expert to admit, during cross-examination, that the opinions he shared with the jury during his direct examination are only as accurate as the facts and information he based them upon. That if the facts provided to him were incorrect or incomplete, his expert opinion may not be accurate. There’s a process I use to do this before a jury and in most cases, the other side’s expert will admit that yes, his testimony is dependent on the accuracy of the facts given to him. This helps me set things up for approach #6 below.
YOU: In business negotiations, it is rare that the other side’s experts have all the facts that you do when it comes to your products and services. Find out what facts the other side’s expert relies upon and then share more details or updated information to shed light on the deficiencies or to add additional support to your position and efforts.
Approach #6: Modify the Hypothetical
Usually during trial, the other side will call their expert to the stand and then walk him through their version of the facts and then elicit his expert opinions. This one sided version of events and opinions happens in most trials.
During cross examination, I like to ask the other side’s expert to assume that the true facts are not as defendant states, but in fact are as testified to by my clients. This is easy to do because the other side’s expert has read all the depositions and has been briefed on our version of the case.
I then ask what his or her opinion would be based upon my client’s version of the facts? After walking the expert through a detailed hypothetical, most will agree with our position and even our own expert. This clarifies for the jury that if they believe our side of the story, it’s OK to find in our favor.
By the way, I don’t really care what answer the other side’s expert gives in response to my hypothetical question. If he testifies that even assuming if my client’s version of the facts are true, his opinion would still not change, then the jury knows he is nothing more than a biased witness who will say whatever he is paid to say.
YOU: When you reach an impasse with the other side’s decision maker, ask him or her (or the other side’s expert) what would be the right thing to do assuming the facts or circumstances communicated by you were true and accurate? What would be in the decision makers best interest?
Often times by using this approach, the light bulb comes on and a bit of clarity is introduced into the conversation. Try it, you’ll like it.
Approach #7: Impeach with Accepted Authority or Treatise
Before each trial, I usually take the depositions of the other side’s expert witnesses. I ask for all their opinions and all facts they base them on. I also ask about what information and treatises (books, publications…) they base their expert opinions on.
If the other side’s expert offers an opinion contrary to a well respected and known treatise, I use that treatise later during trial to impeach him and to show the jury that the opinion this witnesses has just testified to is contrary to what other respected experts believe is true and accurate.
YOU: It’s important for you to do your homework before making a presentation. Find out what the other side’s expert opinion is based upon and find out if his opinion is supported by accepted authority or treatise. Just because the other side’s decision maker’s expert says the world if flat doesn’t mean that’s actually the case.
Approach #8: Attack the Expert Head On
During litigation and trial, I prefer to use one or more of the above indirect approaches to cross-examine the defense attorney’s expert witness. In almost all instances, this indirect approach works best and allows me to make my point.
Having said that, every once in awhile you must put on the gloves, step between the ropes and do your best to land a knockout punch. Because most experts are pretty good at avoiding a direct blow to the chin, I try to avoid this last approach. It’s risky and can easily backfire.
However, some experts are so full of themselves that they actually make an easy target. Sometimes, and I mean just sometimes, you can take these guys and gals on, have a bit of fun, throw a knockout punch, and walk away with the championship belt.
YOU: Sometimes the other side’s decision maker just doesn’t know any better. By taking on his expert with the facts, you can expose his expert’s motives for what they are and land the knockout punch.
There’s another reason you just might want to give this a try. Sometimes the decision maker is simply looking to do business with someone who he can trust and believes has a backbone. I’m talking about someone who isn’t afraid to take on authority and who is interested in learning the true facts and eliminating all the unnecessary static and falsehoods. Using this approach just might help you show the decision maker that you’re the right guy or gal for the job.
Conclusion
The best way to take on the other side’s expert is to use one or more of the above indirect approaches. The key to success is being prepared and putting the appropriate approaches to use in a careful, calculated by considerate way.
Always remember to separate the person from the issue. In most cases you don’t ever want to allow things to get personal. Nobody likes a bully so even if you know you’re right, show the decision maker what the issues are without raising your voice or degrading the other expert.
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Attributions:
Many years ago I came across these 8 ideas from “McElhaney’s Litigation” by James W. McElhaney. They work well and have allowed me to win million dollar jury verdicts for my clients. I hope you found these tips useful. If so, please share this post with your friends. Click here to share on Twitter!