of Cross Examination Expert Witnesses Irving Younger s Ten Commandments 6/9/2017

Transcription

1 Strategies and Tactics for Cross Examination of Expert Witnesses Jennifer V. Ruiz Hedrick Gardner Kincheloe & Garofalo, LLP Dan Morton Ennis, Baynard, Morton, Medlin & Brown, PA Irving Younger s Ten Commandments of Cross Examination 1) Be Brief 2) Use Plain Words 3) Use Only Leading Questions 4) Be Prepared 5) Listen 6) Do Not Quarrel 7) Avoid Repetition 8) Disallow Witness Explanation 9) Limit Questioning (the one question too many) 10) Save for Summation Larry Pozner, Roger Dodd, Crossexamination Science And Techniques Only Three Rules of Cross Examination 1) Leading Questions Only 2) One New Fact per Question 3) Break Cross Examination Into a Series of Logical Progressions to Each Specific Goal 1

2 Preparation File Materials Discovery depositions creating impeaching material Prior Transcript Input from Your Expert Bias Organization Pre Mark Exhibits Have impeaching material readily at hand Coordinate with opening Scope Of Cross Examination North Carolina courts follow the English rule and allow cross examination on any matter relevant to any issue in the case, including credibility, regardless of whether or not it was raised on direct examination. This is different than the more restrictive federal rule which limits crossexamination to the scope of direct examination and the credibility of the witness, though the judge may, in her discretion, allow wider latitude. Carol B. Anderson, North Carolina Trial practice Goals Limiting or eliminating the expert testimony Developing helpful testimony/ promoting your theory of the case Casting doubt on opinions/testimony from direct Showing bias 2

3 Limiting Expert Testimony (Rule 702) a) If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion, or otherwise, if all of the following apply: (1) The testimony is based upon sufficient facts or data. (2) The testimony is the product of reliable principles and methods. (3) The witness has applied the principles and methods reliably to the facts of the case. Casting Doubt Questioning the expert s qualifications Showing bias Questioning the expert s methodology Questioning the underlying theoretical assumptions Questioning the underlying factual assumptions Elicit Testimony Favorable To Your Position Confirm facts favorable to your position Confirm concepts favorable to your position 3

4 Organization Chapters Headlines Start and finish strong Organization within chapters Organization between chapters Scope of Cross Examination Length of cross examination limit your cross examination to your stronger points don t pursue trifling points that dilute your other arguments Finish decisively Example of organization a common scenario in personal injury defense (ROM is subjective) # patients seen in a typical day Importance of taking notes Importance of keeping accurate notes SOP for taking notes Performed ROM test Asked patient to turn head Relied on patient to turn head Relied on patient to tell you if he felt discomfort when turning head You recorded that patient reported pain You did not record anything specific about how the patient reported the pain You relied on what the patient told you The ROM test was a subjective test Leading Questions Only Or Not 4

5 One New Fact At A Time For Control For Emphasis Tone And Pace Jurors expect lawyers to be professional Tone decide up front what kind of witness this is do not get ahead of the jury emotionally Inflection Do anger; don t get angry Pozner and Dodd Slow it down when appropriate don t rush the good stuff Speed it up when appropriate Word selection Translate complex matters into concepts that are easy to understand Slicing the Salami short version Q: When Ms. Smith came to your practice a month before the accident she was already complaining of back pain and radiating leg pain? 5

6 Slicing the Salami long version Score in Real Time Use of Exhibits on Cross scoring in real time. Control the courtroom Presenting evidence out of order The order of proof is a rule of practice resting in the sound discretion of the trial court. The manner and presentation of evidence are largely within the discretion of the trial judge, and his or her control of the case will not be disturbed, absent a manifest abuse of discretion. A trial court has broad authority to structure the trial logically and to set the order of proof. 13 N.C. Index 4 th, Evidence and Witnesses 601 (citing cases). 6

7 General Rules of Practice Rule 1. Philosophy of General Rules of Practice They shall at all times be construed and enforced in such a manner as to avoid technical delay and to permit just and prompt consideration and determination of all the business before them. Looping 1) Through a leading question establish the desired fact or phrase: 2) Use the fact or phrase established within the body of the next question, but without re asking the fact; and 3) Connect the looped fact or phrase with a question that contains an undisputed fact. Attach the looped fact to a safe fact in the second question. Pozner and Dodd, Cross Examination, Science and Techniques Controlling The Difficult Witness Listen Bet on yourself Listen Bet on yourself Maintain eye contact Repeat the question Reverse the question Don t ask the Judge for help Don t interrupt (unless.) 7

8 Thank You! Jennifer V. Ruiz Hedrick Gardner Kincheloe & Garofalo LLP (919) Dan Morton Ennis, Baynard, Morton, Medlin & Brown, PA baynard.com (910)