Preparing your expert witness for cross examination is an important duty for any trial lawyer. Indeed, how your expert witness performs during cross-examination may make or break your client’s case. How well your expert witness performs during cross examination, depends in large part upon how well your expert has been prepared. We recommend the following 10 ways to prepare your expert witness to testify:
- Stress to your expert witness that he needs to study and prepare as though he were studying for an important final examination. Explain that success on cross-examination is often more perspiration (preparation) then inspiration.
- Find out what your expert is most afraid of being asked and show your expert how to deal with all of these issues. This will help allay your expert’s anxiety.
- Explain how opposing counsel will use leading questions to control the examination. Demonstrate this.
- Identify potential soft spots/problem areas and explain to your expert how you will use direct examination to try to manage and defuse these issues. Practice this.
- Explain to your expert that he must tell the truth and should make concessions gracefully and readily where these are called for. He who is strong everywhere is strong nowhere. Emphasize that evasiveness and being defensive should be avoided. Explain and demonstrate how you may use redirect examination to clear up any false impressions.
- Grill your expert in a mock cross. If possible, have a different lawyer from your firm do this work or hire a third-party consultant. Hit the expert hard in their weakest areas. Attack them in unexpected or tangential areas and see how they respond.
- Provide feedback to your expert on their body language. (Many experts exhibit nervous behaviors during cross that could be interpreted as indicating deceit. Break your expert of any such habits).
- Show your expert how the facts can be their best friend. When opposing counsel is throwing around hypotheticals or distortions, teach your expert how to use facts to pop counsel’s bubble. Remind your expert to return to the facts and other safe havens when he finds himself in trouble.
- Teach your expert to not let opposing counsel cut him off. This is often one of the hardest things for an expert witness to learn.
- Demonstrate to your expert witness how to seize opportunities and jump on mistakes, such as being asked a “why” or other open-ended question by opposing counsel.
James J. Mangraviti, Jr., Esq. and Steven Babitsky, Esq., are frequently called by expert witnesses, their employers, and retaining counsel to train and prepare individual expert witnesses for upcoming testimony. They are former litigators who currently serve as Principals of the expert witness training company SEAK, Inc. (www.testifyingtraining.com).