An expert, testifying in court, will undergo cross examination by the opposing attorney. He will attempt to show that you are not qualified, discredit the foundations of your opinions, or discredit your opinions.
To discredit you, the cross-examiner will try to show you have little or no theoretical, educational or practical experience. The expert may counter by reciting the credentials from their CV.
The cross-examiner will try to show inconsistencies in statements you have made in your discovery deposition, any written reports you have made or in article or books you or others have previously published.
To discredit the foundations of your opinions, the opposing attorney will question whether you have run enough tests, examined enough facts, etc. to be able to form a valid opinion. An example: "How can you be sure if you have not visited the scene of the fire or the personal injury?" Another question will be, "Did you do ABC?" He wants to make you look as though you did not do your homework. Your answer may be, "Of course not. Such a test would not prove anything here."
To discredit your conclusions or opinions, opposing counsel may try to show you are confused and therefore could be wrong.
Some of the standard questions which the expert may expect and some suggested answers are set forth below.
Q: Are you being paid to testify?
A: No sir, I am not being paid to testify. I am being paid for my time, my testimony is my own. My fee was agreed upon in advance and does not depend on the outcome of the case. I am being paid no matter who wins.
You are not being paid for your opinion. You are being paid to study the case and form an opinion (come to a conclusion). You are charging your client the normal hourly rate. If you were not here, you would be working some where else. Do not be embarrassed to say how much you charge. The higher the amount, the more qualified you are. It is the person who is reluctant to tell the jury how much he or she is being paid who may be perceived as being able to be corrupted by a lot of money.
Of course you may always answer the question your way:
A: My company is paid $140 an hour.
Q: Do you often testify as an expert witness?
A: Yes.
Q: Then you must be a professional expert, a hired gun.
A: I would prefer to think that I am being consulted frequently because of my professional competence and reputation.
The expert's client-attorney may bring up the compensation question more gently during direct examination. This will defuse the question, taking this offensive play away from the opposing attorney.
Always tell the truth. It is better to say I don't know or I do not remember than to make a guess.
Q: Would you swear that is what happened in your tests?
A: I was sworn to tell the truth when I took the stand.
The usual rule is to answer cross-examination questions with a "yes" or "no". It is OK to say, "I don't know" if the attorney deviates from your field of expertise. If the question deals with your field of expertise and you do not know, you can always say, "I was not asked to research or look into that."
If a question is put to you that you cannot answer with a "yes" or "no" and the opposing attorney instructs you, "Please answer yes or no", you can respond, "I can't answer with a yes or no without leaving a false impression with the jury (or judge)." If the judge then instructs you to answer "yes" or "no", the jury will know something is missing. Hopefully your client-attorney will also mark that question as one which you should be asked to explain on redirect.
It is a favorite tactic of cross-examiners to ask a long question with one fact changed from those in the case. The expert witness may respond, "The question is complex, would you mind breaking it up?" or "Your question was so long I got lost" or "I am afraid my answer is going to be as convoluted as your question. Why don't we take it one point at a time?"
When confronted with something you wrote or a transcript of something you said, ask to see it so that you can see the context in which it was said and if that is what you actually said. It will also allow you to refresh your recollection. If the facts have changed since you wrote or said it, say so. It is better to admit an error and give the appearance of being truthful than to have your credibility impeached when you try to stick with an old or obsolete answer. One way to get around this problem is to have your client-attorney bring it out on direct rather than have it pried out of you on cross examination.
Parts of this article were extracted from The Expert Witness Handbook by Dan Poynter. Mr. Poynter is an expert in parachutes, skydiving and Para-Sails. The book is $29.95 plus $2 shipping and may be obtained from Para Publishing, P. O. Box 4232-766, Santa Barbara, CA 9310-4232.
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