The expert's reputation is not on the line and devastating cross-examination is rare. Perry Mason does not pierce through a case with a final, crushing question put to the opposing witness. The expert's preparation involves review of all relevant deposition transcripts, technical reports, test results and previous case testimony. Testimony should be outlined but not drafted verbatim.
The expert should rehearse testimony with counsel at least once. Time for practice sessions with other experts in the case should be allowed. He also must be knowledgeable about the matters in dispute, the facts presented as evidence.
An expert witness will not be able to read testimony from notes or reports for the court record. An expert is expected to be able to speak "off the cuff. If the witness plans to bring notes to the witness chair, they must be effective, carefully prepared and organized. A loose-leaf binder is a good approach for written material, with dividers for each major section of work performed or conclusions reached.
Each section should contain the ultimate findings or opinions, followed by supporting documents and references. This organization pays handsomely in confidence, ready references and impact on the opposing counsel. The expert should be aware that the judge or hearing officer as well as opposing counsel is allowed to examine whatever is brought to the stand to testify.
Is schizophrenia a mental disorder which is a various, is a composite of various personality conflicts, in other words, the cause of that type rather than of a disease such as a scar on the brain or something? Chula, you can take those matters up outside the hearing of the jury at the Judge's bench.
Chula: And I would like the record also to show, your Honor, the reason that we have approached the bench here, it was for the same reason, we have approached the bench for the same purpose, and the reason we have approached the bench at these various times is because of the order of the Court on these subjects and not to hide anything from the jury.
The following proceedings took place at the judge's bench, outside the presence and hearing of the jury:. Chula: If your Honor please, as I understand the Code, the Court has a right to call those witnesses as their own, the prosecution has a right to call them as their own, and when any one of the sides to the action, or the Court, call a witness, the other parties have a right to cross-examination.
As to those matters that we have questioned him about, I still feel that we have a right on direct examination to take over this witness as our own at this time and the prosecution can cross-examine him if they wish.
If you see fit to call him as your own witness, that's all right, but no cross-examination as you started to do right there. Chula: And, further, in this particular case the rule is, if I understand it correctly, and I have been incorrect and I probably am about many matters, it is not that I am going against the rules of the Court, but the rule, as I understand it, is that leading and suggestive questions may be used on certain types of witnesses under certain conditions, at the discretion of the Court, and that they should be in this case, inasmuch as the defense hasn't had ample opportunity to go over this with this witness, we have had no opportunity to talk with him privately; that he is a Court- appointed witness, that we should be able to use reasonable leading questions [ Cal.
Kneeland: Just a minute, Doctor, I will object to that question. I think the matter was gone into fully with Dr. Musfelt the other day. That concept of schizophrenia, that the concept of schizophrenia in the past years originally evolved by Kraepelin and then by Meyer later, and Bleuler, have all been various, they have defined it in various ways, and they have meant different things when they have said schizophrenia, isn't that correct?
Kneeland: Your Honor, I object to that as leading and cite the conduct of defense counsel as prejudicial in view of the previous rulings of the court. In view of the ruling of the Court, Counsel, I would suggest, Counsel, that you govern yourselves by that ruling.
You have your recourse if I am in error, and you are not to persist in the face of a ruling. Chula: Is it my understanding, then, your Honor, that the ruling means I am not to ask any questions on schizophrenia at the present time of this witness?
If a person has schizophrenia, Doctor, it won't show up in any organic test, will it, or will it? Well, a person who has schizophrenia, if a person has schizophrenia, will it show up organically? Kneeland: I object to that, your Honor, as leading and improper direct examination at this time.
What do we mean by organic, you know, when we say, can you tell whether there was any organic cause? Is schizophrenia a result of, say possibly only one confliction in the emotions, or is is a composite? Doctor, have I ever, for the record, your Honor, have I ever discussed this, talked this matter over with you as to these questions and answers? Chula: If your Honor please, I would like to, we could by this witness, by that question, prove that leading questions are necessary in this witness, as stated before, since this witness hasn't talked privately with us except from the standpoint of where I called the doctor on the phone and said, 'Will you come over to court tomorrow, I want to ask you some questions about schizophrenia,' nothing else other than that, and that we haven't had any discussion with him about the matter, and that leading and suggestive, leading questions, especially, I don't know about suggestive, are necessary for proper examination of this witness.
The following proceedings took place in open court, within the presence and hearing of the jury. Doctor, if we took an encephalogram test on a person who had schizophrenia, would that show up on the test? And can you tell us whether schizophrenia is a rare mental disease, psychosis, or is it a frequent one? Very common. And can you tell us in percentages about how many people in the public hospitals and the mental hospitals have schizophrenia?
I believe you testified to that the other day, did you not, Doctor? I believe that both of those have been gone into. With a person who has schizophrenia, Doctor, will they show or have epileptiform or syncopal attacks which suggest seizures of epilepsy? They may or they may not; I will have to qualify that. I can't say yes or no, some do, some don't. Kneeland: I object to that, your Honor, as having been gone into and having been asked and answered.
The transition from schizoid type, just a plain schizoid, to the schizophrenic, is that a rapid transition, or is it one that slowly but surely, from the schizoid we fade into the schizophrenic? Thereafter, similar questions were propounded and answered without objections.
Objections were sustained to many of them and overruled as to others. The jury was then excused. The trial judge and counsel retired to the court's chambers and the court remarked:. That I consider a direct disobedience of a lawful order made by the Court.
It is willful, and intentional and I cite it as such and the matter will be disposed of at a later time. Chula: May I be advised as to what order I was in contradiction to and I would like the record also to show this book which I had was laying on the table in front of me among other papers. No mention was made of the book itself. It gives me the feeling that I have nothing to gain and everything to lose from the standpoint of reputation and otherwise, and that as far as this Defendant is concerned I can't really see why my [ Cal.
Chula: And prior to this time on the contempt I have had no warning, as I recall it, that I should not ask questions of this type as to each question. You said it was leading and the objection was overruled. I was not told not to ask any more questions on schizophrenia. I did ask other questions to the best of my ability; that there was no direct intentional disobedience of the Court order.
This is a fair exemplar of the proceedings leading up to the order of contempt, which we will designate as charge No. Predicated upon this showing, the court found that petitioner willfully, deliberately and with complete disregard of the rulings of the court, asked the witness leading questions and sought to cross-examine him for the purpose of placing before the jury the subject matter excluded; that such actions tended to interrupt the due course of the trial and impair the respect of the authority of the court.
The next charge designated as No. He said:. Chula: I would like to state this in my own defense; at that time you must realize, and I think the record will show, that we had been through a trying eight weeks and we had thought the relatives would be able to raise money for psychiatrists, and in addition to that we have felt since then that possibly our only hope lies in an appeal. Chula: The point is this--we feel there is enough in the record already--but the point is this, that we felt that merely by going into this matter and putting ourselves out financially, individually--we are attempting at this time to get this thing over with as fast as possible.
It is wise to accept the stipulation if you believe there is any chance your expert could be vulnerable to a FRE challenge. However, if you are confident that your expert would pass such a challenge, it would be wise to decline the stipulation and take the opportunity to introduce your expert to the jury on a more personal level.
If a court is pressuring you to accept a stipulation, but you would still like to achieve this goal of gaining reputability with the jury on behalf of your expert, then consider asking for a compromise. Where you accept the stipulation but can still review key highlights about your expert before examination. When doing this, however, keep in mind that the expert should do most of the talking, and not the attorney, in order to achieve this goal of gaining trust with the jury.
Ask them questions that allow them to speak in detail about their experience and qualifications, ideally in a chronological manner, with an emphasis on experience related to the case at hand. Two ways to elicit the ultimate opinions of an expert are through hypothetical questions, and having the witness explain the basis for his or her opinion.
Unlike with lay witnesses, expert witnesses may answer hypothetical questions, as opposed to questions based solely on their knowledge of the facts of the case. This can be most useful when an expert is not fluent in the facts of the case. When asking a hypothetical question, make sure the components of the question match up perfectly with the components of the case.
As far as basis for opinions, the modern approach dictates that experts may state an opinion without first testifying to the underlying facts or data. However, not all jurisdictions follow the federal trend, so any attorney should double-check these requirements before trial.
In general, it is better in the eyes of the jury if an expert explains his or her reasons for any opinion, so a wise attorney ought to walk the expert through many of the key facts and inferences of the case.
Get legal industry news, expert perspectives, and the latest in litigation straight to your inbox. Over a period of about 90 minutes, which is much longer than a pilot would ever drain a tank in real life.
Every time I drained any water I put it in a measuring device which was on the floor in the hanger. I had a video camera mounted on a tripod, and I filmed the entire sequence of events from the time I filled the gallon jug to pouring it in the tank, and then every attempt to drain the tank over that 90 minute period. Weller narrate the videotape from the witness stand. There are few things in a trial more damaging than a live experiment which backfires in front of the jury.
The ill-fated glove experiment in the O. Simpson trial will forever represent the classic illustration of this point. Sometimes those facts are not disputed, and the opposing experts merely draw different conclusions from the facts. In other instances, there are disputed facts, and the expert accepts a certain version as true. In either event, it must be made clear to the jury what facts the expert is relying upon.
How does one lay out those facts for the jury? There are two ways to do that. Another way is for the attorney, in effect, to lay out those facts by using hypothetical questions or asking the witness to assume certain facts to be true. It is strongly suggested that you rely upon the second of these two alternatives. There are several reasons. Suppose that you have a complicated case, and you are concerned about whether or not the expert is going to remember all of the facts of the accident.
The danger with this sort of witness is that he has not taken the time to learn all of the detail of the file or if he knew it at one time, he did not review the file sufficiently before taking the witness stand. Second, if you provide the facts to the expert in hypothetical or assumption form, you maintain tighter control on the entire testimony by laying out the facts in your own order and at your own pace. Third, and this is particularly true of hypothetical questions you get to neatly package your entire theory of the case for the jury in the context of posing a question to your expert.
To illustrate these points, let us consider a product liability case involving a defect in a large crane. Bowman, did you review the various accident reports, witness statements and depositions of the three workers who were on the scene at the time this accident happened? Did the materials you reviewed indicate that the workmen set the crane in place on the berm of the road next to the building under construction with all four outriggers fully extended and touching the ground?
Bowman, let me ask you to assume …. After they got the outriggers set, did you understand that they raised the level of the boom to a height of feet? Is it your understanding that, after raising the crane to that position, the workmen hoisted approximately steel plates to the work site on the building? Another way to accomplish the same thing is to ask a lengthy hypothetical question such as the following:.
Bowman, I want you to assume that on the day of the accident, the three workmen started their shift at approximately a. I want you to further assume that, once having so positioned the crane, they set all of the outriggers in their full extended and locked position.
You should assume that after setting the crane in that fashion, they raised the boom of the crane to a height of feet, at which point the boom was at an angle of. I want you to further assume that …. This technique may be similarly employed in a medical malpractice case where a physician bases his opinion on the facts reflected in the medical chart. Very often, both sides are relying on the facts in the chart to be true, but their experts simply draw different conclusions based on those facts.
You are concerned that your doctor, while knowledgeable in his area of practice, will not remember all of the facts reflected in the chart. Hence, you may question him as follows:. Doctor, in analyzing this case, did you review the hospital chart for Ms. Did you understand from those records that she initially came to the emergency room at approximately a. Does the chart reflect that she was complaining about acute back pain as well as urinary retention? If you would refer to the hospital chart, can you tell us what the results of that examination were?
Can you turn to the radiology section of the chart and indicate what the result of those lumbar films was? At some after the x-rays were taken, was the patient admitted to a regular room in the hospital? Sellers, I want you to assume that over the next 24 hours, the nurses made the following observations or notations with regard to this patient. At p. Catheter inserted. Thus, it would seem that the most likely situation in which your expert is going to be cross-examined about these subjects would be where there is a significant disparity between what your opponent is paying his expert and what he guesses your expert is being paid or how often his expert testifies as opposed to yours.
Having noted the above, let us assume that you are in a situation where you expect that the opponent will cross-examine on the subject of fees. Try to defuse some of the impact of that cross with questions such as this on direct:. Doctor, would I be correct in assuming that it has taken you several hours to review the material pertinent to this case?
Probably hours over the past two years, and then the time involved in traveling here today and spending time in court. Does the time you spend working on a case such as this take time away from your regular affairs? Are you compensated for the time that you have taken away from your regular practice to work on this case? I simply charge by the hour. So my fees would be based on however much time I have devoted to the project, no more — no less.
Would that be comparable to the hourly rate you would earn in your regular practice? Well, I do not really charge by the hour in my regular practice because we simply do not do things that way in the medical profession. Instead, we tend to charge a flat fee for certain services. If I was to average things on an hourly basis, I would say that it is quite similar.
I might add that in many ways this sort of work is more bothersome than my regular medical affairs. For example, there is a court deadline by which I must complete my report or there is a court schedule which dictates that I must be in court at a particular time.
As you can imagine, that can be quite disruptive to not only me, but my staff and patients. You are concerned with how that number may sit with a jury, regardless of whether it is brought out on cross or direct. To put this figure in perspective, however, you may want to check and see what the defendant doctor charged for the surgery which is at issue in the case.
You may then review the anesthesia record and discover that the surgery took one hour and ten minutes to complete. Walsh, do you regularly get involved in reviewing litigation matters for plaintiffs? I almost always have at least a few cases that I am consulting on at any given time. I enjoy it from an intellectual standpoint. I find it to be challenging, and also it requires me to be up-to-date on the latest trends and knowledge in my field.
Also, to be quite frank with you, I know there are many of my colleagues who may privately admit that [there was a problem with the design of a product] or [a doctor has made a mistake] but they are reluctant to step forward and publicly state these opinions.
I believe that if an injury has occurred which should have been avoided, it is the responsibility of someone in the profession to step forward and say so. In those cases where I have offered testimony or written a report, they have usually been on behalf of the plaintiff. The reality is that it is the plaintiff who usually has contacted me, although I am equally willing to review a matter for the defendant when requested.
I should point out, however, that in the overwhelming majority of instances where I am contacted by a plaintiff to review a matter, I tell them that I do not believe they have a legitimate claim. It is only in the relatively small percentage of cases where I believe the plaintiff has a legitimate claim that I end up writing a report or testifying.
So, when you ask me on behalf of which party has most of my testimony been, clearly it has been the plaintiff. However, in the overall scheme of things, I usually end up informing the plaintiff I do not believe they have a legitimate case. It is often said that a lawyer should strive to end direct or cross of a witness on a high note. To prepare for what these questions should be, try this technique.
Pretend you only had one minute to explain to someone the conclusion s your expert has reached in a given case. You will probably give a second explanation which incorporates two or three major points, perhaps one leading to another. Try diagramming the three points like links in a chain. Now, prepare a few summary questions which draw out each of those three basic conclusions. Remember, you do not need a lot of detail or basis for the conclusions at this point because presumably the expert has already provided that in the earlier stages of direct testimony.
The more important thing here is to simply leave the jury with a quick overview of what the expert has said. Aaron, to summarize your testimony of the past few hours, can you tell us again what, in your opinion, was the cause of death of Mrs. When she was seen in the emergency room the evening before her death, was the ovarian abscess discovered? What tests or examination should have been done that would have led to the correct diagnosis? A full pelvic exam should have been done that would have led to the discovery of the ovarian abscess.
In your opinion, was the failure to do a pelvic examination a breach of the accepted standard of care? Did this breach set in motion a series of events which led to Mrs. Personal Background And Qualifications Name, business address, etc. Brief description of educational history Medical specialty and board certification, where applicable Mention noteworthy publications, teaching appointments, professional positions, etc. First Contact With Plaintiff Date of first visit to doctor History of accident given to doctor Bodily injuries complained of Anatomy background — At this point before the doctor proceeds further, it may be helpful to digress momentarily and provide the jury with a little medical background.
For example, if the plaintiff comes to the physician complaining of a back injury, it may be useful to describe the anatomy of the spine. If causation is more complex, the subject may be worthy of a separate segment unto itself.
Causation As noted above, if causation is particularly complicated, the subject may be worthy of a segment of its own. Therefore, one must lay out a neat chronology for the physician and then ask the ultimate causation question. Use simple direct language in framing opinion question, e. Just ask the doctor at the outset if all of his opinions are stated within a reasonable degree of medical certainty. Hospitalization If the plaintiff has been placed in the hospital for treatment, that event is generally worthy of a separate segment in the testimony outline.
In reviewing hospitalization with the physician, be sure to point out important diagnostic tests, operative procedures, etc. Follow-Up Office Visits Generally, one should not review each and every office visit — too boring for the jury. Instead, have doctor indicate how long he followed the patient and at what intervals. Describe course of treatment in general terms including medications or other modalities employed.
Proof Of Disability Establish the length of time that the plaintiff was off work. What risks would the plaintiff face by working? Prognosis Ask the doctor what the future holds for the plaintiff in terms of continuing complaints of pain, limitation of function and motion, etc. Will they remain unchanged? Establish the impact of continuing problems on future employability.
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