This is the last in a series including #26 and #27. Defense experts get the last word. They testify closest in time to deliberation. That puts them in prime position to divert the jury to the wrong conclusion. They have impressive credentials and are good talkers, which gives them authority. The goal is to have jurors accept what they say as fact, leaving jurors no choice but to find for
the defense since verdicts are supposed to be based on facts.
To keep such a last-minute diversion from being successful, there are two steps you can take during cross. The first is to knock the expert off his high horse by setting the record straight that this for-hire witness isn’t stating “facts”, he is stating “opinions”. The second is to put the witness in his place by making it clear the defense sought someone to give that very “opinion” and it’s not all just a big coincidence the doctor they picked is saying exactly what they wanted him to say.
Sample First Step Questions
When you say this was just a temporary sprain/strain, you’re not stating a fact, you’re stating an opinion, correct?
The films, medical records and sequence of events are the facts, isn’t that right?
Sample Second Step Questions
The defense handpicked and hired you, right?
You have worked for these lawyers many times, haven’t you?
You hope to work for them again, correct?
In fact, you have other cases in the pipeline already, isn’t that true?
You do know it helps them if you say this was not a serious injury?
[Then expose the fatal flaws in his/her testimony.]
Start the Process During Discovery
At the beginning of the case, send an interrogatory asking: Do you admit Mr. Smith suffered a permanent injury as a result of the crash? If not, state the basis for denying it. The denial may already be in their answer to the complaint, but pleadings aren’t evidence in many states. Interrogatory answers are always evidence. This will allow you to prove the defense made up its mind to deny permanency before your client was examined by their hired doctor. You can use that fact to show their witness is rubberstamping a predetermined defense. It will provide great material for cross.
Write the date of the interrogatory answer on a flipchart, along with the later date when the expert was hired, and even later date when he examined your client. Then ask, “So, the defense chose to deny this was a serious medical condition before even talking to you about it? It just so happens they got what they wanted from you? In closing you can circle back with “Is it all just a big coincidence that Dr. Bull ended up saying exactly what they wanted, like he almost always does?”
Wording of Your Qs
I believe cross is less about answers than questions. The words you choose, the tone, cadence and sequencing of your questions will tell a story. There should be a moral to your story. The moral can be things like: truth matters (if you have an obvious dishonest witness); bad in, bad out (if an expert is relying on inaccurate or incomplete info); even good people can get carried away by the competitive spirit (if the expert is likable but saying things that just aren’t right); truth finds a way to shine through (if the expert gives really helpful admissions).
In the process, be careful how you characterize the opinions their experts are giving. You don’t want to inadvertently send the message through your questions that you believe they believe they’re giving an honest opinion. Most of the time our position is they are making it up to help their team, or got carried away by the competitive spirit and went too far. Questions that include, “your opinion is” send the wrong message that it really is there true opinion. You’re better off phrasing it as, “the opinion you’re stating for the defense is”, or simply “you say”.
One Caveat
When your medical experts testify, you must be careful not to appear like you are talking out of both sides of your mouth. Maintain your integrity by pointing out their conclusions are based on facts, but are not facts. Then, go through the reasons that make their conclusions the right ones based on all the facts, circumstances and common sense.