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Washington Legal News

Date: 10/3/14

Brett Murphy attorney Paula McCandlis, who is also current Whatcom County Bar Association President, filmed an "interview" she did with Bellingham business attorney Rolf Beckhusen, regarding his neighbors, a new marijuana shop called 2020 Solutions.

The video was shown at the recent Bar Association lunch, and it got quite a reception. You will see why when you check it out on Paula's Blog.

Date: 9/30/14

In the five earlier articles of this series, I discussed the reasons why you need to cross-examine an expert witness, the four main advantages a trial lawyer has over an expert witness, and the four stages of general preparation for the cross-examination, the specific preparation required to undertake an effective cross-examination, and the final preparation and the Ten Commandments of Cross-Examination.

In this last part of the article series, I demonstrate a few of the cross-examination techniques discussed earlier through excerpts from a cross-examination I conducted of a defense economic-loss expert a few years ago.

What follows here is my opening effort to discredit the expert. He fights me; he tries to avoid answering a “yes” or “no” question, but loses the fight – big time.

The bottom line – he assumes the plaintiff, a college sophomore, can become a CPA in three years, when it took the expert eight years after his sophomore year – including failing two parts of the CPA Exam!

 

BY MR. BRETT:                                            

In this last part of the article series, I demonstrate a few of the cross-examination techniques discussed earlier through excerpts from a cross-examination I conducted of a defense economic-loss expert a few years ago.

What follows here is my opening effort to discredit the expert. He fights me; he tries to avoid answering a “yes” or “no” question, but loses the fight – big time.

The bottom line – he assumes the plaintiff, a college sophomore, can become a CPA in three years, when it took the expert eight years after his sophomore year – including failing two parts of the CPA Exam!

BY MR. BRETT:                                           

Q.     Mr. ________, have you testified hundreds of times?

A.     In deposition, yes.                              

Q.     You testify regularly in court, don't you?       

A.     I have testified in court in excess of a hundred times over my career.                            

Q.     We have two witnesses estimating my client's economic loss, correct?                          

A.     Yes.                                             

Q.     Is it true that if plaintiff vocational rehabilitation expert’s assumptions are incorrect, his conclusions are incorrect?    

A.     That's correct.                                  

Q.     And is it also true that if your assumptions are incorrect, your conclusions are incorrect?      

A.     Yes.                                             

Q.     And this jury is going to have to decide whose investment program is most prudent.  So I'm going to ask about those assumptions you've dealt with.  I'm going to talk about your assumptions.  I'd like to start out with how long it's going to take to retrain my client, okay.  You assumed that she would begin an accounting course at Western Washington University in June of 2009 based on defense vocational rehabilitation expert’s report; is that right?   

A.     Well, if we can back up to the preface to your question.  I think you misstated what you're trying to do.  You kind of mixed apples and oranges.  We're talking about -- first you introduced total economic loss, and then you said that we had differences between the discount rates.  That's not correct.  There's a variety of factors --                                       

Q.     There are a number of things.  You different have assumptions, and we're going to go through all of them.  We'll make sure that we cover everything. 

A.     Oh, okay.                                        

Q.     You begin assuming she starts an accounting course at Western Washington University in June 2009, per the defense vocational rehabilitation expert, right?                       

A.     I said she could start an accounting course or a bachelor's degree.  She could get it marketing. She could get it in human resources.  She could get it in finance.  There is a whole bunch of different business related courses she could take.  But, yes, I assumed in June of '09.       

Q.     And you assumed that she takes a full load of 15 hours a quarter?                                 

A.     That's correct.                                  

Q.     And you assumed that she goes to school nine quarters without a break, correct?               

A.     That's correct.                                  

Q.     That's summer, fall, and winter of 2009; spring, summer, fall, and winter of 2010; spring and summer of 2011.  That's the nine quarters you're talking about, correct?                          

A.     Yeah.  Similar to what she would have done if she would have worked.  She would have worked full    time.                                            

Q.     And then you assume that she could attain 135 credit hours in those nine quarters, per the defense vocational rehabilitation expert's report, correct?                      

A.     Yes.                                             

Q.     And then you assume that she can get all of the schedules, the courses that she needs to graduate in that nine quarters, correct?                  

A.     Well, ask the vocational rehabilitation expert who researched that.  So I'm relying upon his opinions.                   

Q.     Then you assume that she would take the CPA exam in August of 2011, correct?                      

A.     Yes or before.                                   

Q.     And that she would then pass it?                 

A.     Yes.                                             

Q.     And then you would assume she would get a CPA. She could start her work one month later, in September 2011, correct?                         

A.     Well, let's just back up a little bit.  What I have assumed is that she graduates with a certificate in accounting.  You have to have -- before you can sit for the CPA, you have to have certain course curriculum.  I'm assuming that she takes that course curriculum and that within the first year of employment she'd be able to either pass the CPA exam before graduation or within the first year of graduation.                        

Q.     So she has two years and four months -- and by the way, she's working quarter time during this period of time, correct?                         

A.     Of ten hours a week, according to the defense vocational rehabilitation expert, yes.                                             

Q.     Can we call that quarter time?                   

A.     Yes, you can.                                    

Q.     And during this period of time she's also taking care of her other medical and physical needs while she's working ten hours a week and going to school full time, correct?                       

A.     I would assume so, yes.                          

Q.     And she's doing this while she's doing any necessary surgery on her foot, correct?          

A.     Again, that would depend upon the necessary schedules of her medical care, and that's up to a physician to opine on.                           

Q.     Okay.  And so that's the assumption you're working, with as far as getting her retrained?   

A.     Well, I'm relying on the defense vocational rehabilitation expert’s opinion that indicates that she could be retained by September 2011 given all the facts and circumstances of this case.                                       

Q.     But you're not relying upon the testimony of plaintiff’s vocational rehabilitation expert, that it would take her five years to get a BA and an MBA.  You are using the defense vocational rehabilitation expert instead, correct, for your assumptions, not the five years?                                      

A.     Well, I'm using that she doesn't need an MBA to restore her earning capacity.  That would be overkill.                                        

Q.     Okay.  So you actually studied for an MBA yourself?                                        

A.     I did.                                           

Q.     You graduated from Washington State University in 1973?                                            

A.     Yes.                                             

Q.     And you then took courses towards an MBA at Seattle University in business administration throughout 1976, correct?                        

A.     Yes.                                             

Q.     You then decided not to complete the MBA degree, correct?                                         

A.     Right.  Rather than write the thesis, I decided to study for the CPA exam.  I was working for an accounting firm, and I wanted to be a CPA.       

Q.     So you last took an MBA course in 1976?          

A.     Yes.                                             

Q.     And then you took the CPA course twice, in 1977 and 1978, correct?                               

A.     I believe that's correct.                        

Q.     And there are four parts that you have to pass in order to pass that course, correct?              

A.     At that time there were, yes.                    

Q.     And what were they?                              

A.     Let's see.  There was practice, law, auditing, and -- I can't remember what the third one is. It's been long ago.                              

Q.     So you took the four parts, and you failed two and you passed two the first time through?       

A.     That's correct.                                  

Q.     Do you remember which two you passed?            

A.     Yeah.  I think I passed the law, and I think the other one was theory.                            

Q.     And which two did you fail the first time?       

A.     As I recall, it was the practice.  That's with the problems, and then I can't remember what the other one was.                                   

Q.     And then you studied it for another year?        

A.     That's correct.                                  

Q.     And then the next time you took it in '77 you didn't have to take the first two that you passed the first; right?                                

A.     That's correct.                                  

Q.     You just had to focus for a year studying that. And you took those two and you passed it the second time, right?                              

A.     That's correct.                                  

Q.     So what happened is it took you three years from the time you stopped studying for the MBA to pass the CPA examine; is that right?                  

A.     That's right.  Because my MBA program is not a certificate in accountancy.  So I had to do a lot of studying --                                   

Q.     Okay.                                            

A.     -- to learn accounting because I had studied finance and economics in my coursework.          

Q.     So you took six years from the time you got a BA from Washington State University to the time you became a CPA?                                    

A.     That's correct.                                  

Q.     In fact, it took eight years from the time you finished half of your college program, which is the position that my client is in, to get your CPA; is that correct?                       

A.     Before the State issued the actual license, yes. 

Q.     And your economic analysis assumes that while it took you eight years, my client can do it in two years and four months; is that correct? 

 

Bias Questioning #2 – This line of questioning was based on information culled from the expert’s C.V. and prior deposition. Note the careful wording of the final question. It doesn’t make any difference how he answers.

Q.     Now, in your CV you say, In addition, he frequently contributes to the following publications:  The first is Industrial -- pardon me -- Insurance Adjuster Magazine.  Do you know who their readers are?                           

A.     Sure.  I think I know who most of the readers are.  I can't tell you everybody.                

Q.     What is the market there?                        

A.     The market is usually people who are involved in the claims adjustment process, but would include insurance company representatives; people who sue insurance companies; it would include attorneys that represent insurance companies; and other people that are involved in that industry.       

Q.     When you say adjust, you mean settle insurance claims?                                          

A.     Yes.                                             

Q.     Now, you also publish to the Seattle Claims Adjuster Association.  Who reads that?           

A.     Those are people that are involved in disputes. They tend to be insurance adjusters. Articles that I write are intended to tell them, people who deal in these issues, how to properly evaluate.                               

Q.     You also contribute frequently to the Tacoma/Pierce County Claims Adjuster's Newsletter.  Who publishes that?                 

A.     The Tacoma/Pierce County Claim Adjuster's Association.                                     

Q.     And in these publications -- and according to your CV these are the only publications you contribute to -- you write articles on how to measure income loss in economic disputes, correct?                                         

A.     I think it also mentions that I write articles that set the standards for industry practice.  I write the -- there are standards that accountants have for --                                      

Q.     I didn't ask what the standards are --           

THE COURT:  Just focus on the question, please.                                                 

Q.     Do you get business by writing in these publications?                                    

A.     No.                                              

Q.     Do you keep copies of the articles that you write for these publications so that I can read them?  

A.     Not generally.  They're informal articles that are put into magazines and newsletters.          

Q.     Have you in the past been a member of the Seattle Claim Adjuster's Association?                    

A.     No.  You can't be a member, unless you're an Adjuster.                                        

Q.     Let me ask it again.  Have you been a member of the Seattle Claims Adjuster's Association?       

A.     Oh, okay.  Let me answer it this way:  Many years ago before the bylaws changed, the answer is yes. Over the last 20 years, the answer is no.        

Q.     Let me go back to the question again. Have you been a member of the Seattle Claims Adjuster's Association?                                     

A.     In the very distant past, yes.                   

Q.     Okay.  And have you advertised for business in the publication of the Seattle Claims Adjuster's Association?                                     

A.     Yes.                                             

Q.     Isn't it true that writing articles about how to calculate economic loss in the Insurance Adjuster
Magazine, the Seattle Claims Adjuster's Association Magazine, the Tacoma/Pierce County Claims Adjuster's Newsletter and then listing those publications on your resume and advertising in the publication of the Seattle Claims Adjuster's Association is a method to communicate to defendants, even of those who do not have insurance, that you can be relied on to take a position favorable to the defendants on the issue of economic loss?  (Emphasis added.)                             

A.     No.                                              

 

I've enjoyed writing this series of articles on a topic I feel is deeply important to any trial attorney. While the concepts discussed throughout the series can be complex and will take practice to master, they are effective and time proven. thanks for reading.                                         

- Dean Brett

Date: 9/9/14

In the four earlier articles of this series, I discussed the reasons why you need to cross-examine an expert witness, the four main advantages a trial lawyer has over an expert witness, and the four stages of general preparation for the cross-examination, and the specific preparation required to undertake an effective cross-examination. In this final part, I discuss final preparation and the Ten Commandments of Cross-Examination.

Final Preparation

We often prepare our witnesses for cross-examination by bringing them into the office, sitting them down, taking the role of the Devil’s Advocate, and subjecting them to a vigorous cross-examination.

Is it not just as important to prepare the cross-examiner?

Have your expert, your teacher, or a consultant in the field hired for the purpose, come into the office, sit you down, and play the Devil’s Advocate with you by assuming the role of the adverse expert witness.

After your general and specific preparation, you should have developed a number of lines of questioning which can be tried out on the “adverse expert.” Those which spring from your failure to understand the intricacies of the specific field of expertise can be set aside or refined. The general propositions that you wish the adverse expert to agree with in utilizing cross-examination can be double checked for universal acceptance.

It is even easier to complete final preparation for the destructive approach involving attacks on the expert witness credibility, because you should know for each line of questioning both all of the questions and all of the answers. Try them out on a friend or relative. If you are too embarrassed to have your friend watch you attempt to destroy the expert’s credibility for fear that he will fail to understand why you are being so aggressive and unrelenting, it is likely the jury will have the same reaction.

Prior to trial you will then have several alternative lines of questioning prepared in advance. They should not be placed in any particular order until the completion of the direct examination, where they can be ordered in light of the testimony and other lines of questioning developed through observation of the direct examination.

Conduct of Cross-Examination

No work on cross-examining expert witnesses would be complete without citation of Irving Younger’s Ten Commandments of Cross-Examination.

Without further introduction, the “Ten Commandments” are:

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.

10) Save it for summation.

To these I add four suggestions:

1) Do not read the questions. As simple as it seems, this admonition is too often neglected by those who bring a long list of questions into court and proceed to read them to the expert witness.

“Written Questions – This mode of cross-examination is completely lacking in dramatic affect and boring. Furthermore, it compels you to take your eyes off the witness (thereby preventing you from observing his demeanor): off the trial judge (thereby preventing you from observing his reaction to or tolerance of what is going on and what attitude he is projecting toward the jury): and off the jury (thereby preventing you from observing their level of interest, whether they appreciate the points you are making or if further emphasis or elaboration is required, and whether they are getting progressively friendly or hostile as the examination proceeds).” Habush, Art of Advocacy - Cross Examination of Non-Medical Experts, page 1-11.

2) Do Not Take Notes. If you must have notes, have someone come into the courtroom and take them for you.

There is one exception to this rule, an exception usable only once throughout any trial. If you receive The Answer of Your Dreams, stop everything. Take out a notepad and write the answer down slowly and carefully, one word at a time. Rip that page out of your notepad, place it on the corner of your counsel table, put a paperweight on it, and throughout the trial whenever you want to draw the jury’s attention away from something a witness is saying, remove the paperweight, pick up the page, read the answer, and smile. In the middle of final argument, stop, walk back over to the counsel table, remove the paperweight, pick up the page, and read the answer to the jury. If you are not willing to make that kind of production out of the notes you take during cross-examination of the expert witness, then the notes you take are not worth the loss of concentration on the witness and the jury.

3) Do Not Panic When You Get the Wrong Answer. If you do get the wrong answer, it is probably not the answer itself but your reaction to it that does the most damage. Be prepared. It is going to happen. Be prepared to act as if the answer either is of no significance at all, is a ludicrous misunderstanding of the question, or is exactly what you were hoping the witness would say.

4) Prepare a Strong First and Last Line of Questioning. Always have a line of inquiry ready to end your cross-examination. It should be thought out, written out, and memorized prior to the direct examination. Once the direct examination is over, it is too late to think of a good final series of questions. You must have these questions ready so that if you get into trouble you can end on a positive note. Always end with a bang, not a whimper.

Selection of the opening series of questions may be more difficult, depending on your approach to the witness. The safest route is to begin by attempting to use the expert witness in a positive way. Obtain as much agreement as possible before turning to a neutralizing or destructive approach. However, if you face an expert witness who you must attack as a hired gun, a biased observer, a liar, or all three, then forget any effort to use the witness in a positive manner and begin directly with the questions most likely to shake the expert’s confidence. Either lull the witness at the beginning or shake him at the beginning, one or the other.

A particularly effective technique, if you can pull it off, is to begin on a positive note with the expert witness using him to build your case in a friendly manner, coaxing all the positive information possible out of him, and then letting him become uncooperative. After he has become unreasonable, then turn to the neutralizing and destructive lines of questioning in “response” to his uncooperative position.

Summary

Effective cross-examination of the expert witness in his own field of expertise can only be accomplished with thorough preparation through learning the expert’s subject, scouting the expert, using your own expert, establishing realistic goals, then by preparing a number of alternative lines of questioning to use, based on a risk-benefit analysis to utilize, neutralize, or destroy the witness.

In the final part of this article series, I will provide a sample cross-examination of an expert witness, to illustrate my points.

Bibliography

Baum, David A., “Taking On the Opposing Expert; An Approach to Cross-Examination,” Trial, April, 1984.

Habush, Robert L., Art of Advocacy: Cross-Examination of Non-Medical Experts, Matthew-Bender, 1984.

Houts, Marshall, Art of Advocacy: Cross-Examination of Medical Experts, Matthew-Bender, 1982.

Keeton, Robert E., Trial Tactics and Methods, Little, Brown & Company, 1973

McElhaney, James W., Trial Notebook, The American Bar Association, 1981

Romano, John F., “Cross Ups in Cross-Examination”, Reference Material ATLA, 1984 Annual Convention, Seattle, Washington

Striker, The Art of Advocacy, 1954

Trine, W. A., “Cross Examining the Expert Witness in the Products Cases,” Trial, November, 1983

Walter, Michael J., “Using the Opponent’s Expert to Prove Your Case,” Litigation, Winter 1982

Wellman, The Art of Cross-Examination, 1903

Younger, Irving, The Art of Cross-Examination, American Bar Association Section of Litigation, 1975

 

Date: 9/3/14

In the three earlier articles of this series, I discussed the reasons why you need to cross-examine an expert witness, the four main advantages a trial lawyer has over an expert witness, and the four stages of general preparation for the cross-examination. In Part 4, I will discuss the specific preparation required to undertake an effective cross-examination.

Specific Preparation

After completing these four stages of general preparation, and well before trial, prepare as many specific lines of questioning as possible, each directed at the goal of gathering specific ammunition for use in final argument.

For purposes of suggesting alternative possibilities, these potential lines of questioning are divided into three conceptual categories.

1) The utilizing approach accepts the expertise of the witness, recognizes that he is being favorably received by the jury, presumes that the likelihood of successfully attacking his credibility is outweighed by the danger of jury resentment should you attack and fail to destroy him, and instead uses his expertise to establish positive information supporting your position.

2) The neutralizing approach avoids an attack on the expert’s credibility, but neutralizes the effect of his testimony.

3) The destructive approach aims at destroying the credibility of the opposing expert.

Rather than attempting to “destroy” each expert witness, a difficult and dangerous task, perform a risk-benefit analysis and choose an attainable goal, such as utilizing or neutralizing the expert, depending on the damage done by the testimony, the perceived ability of the witness to withstand a destructive cross-examination, the reaction of the jury to the witness, and your own level of experience at cross-examination and knowledge in the field of expertise.

The Utilizing Approach

Where the expert is honest, impressive and liked by the jury, attempt only the utilizing approach to establish information favorable to your case such as:

(a) General principles of the expert’s discipline with which all experts agree – such as principles of anatomy and physiology on a medical issue, or;

(b) Points of agreement between the adverse expert and your expert (taken from the deposition you have conducted to pin down these points of agreement after your own expert has delineated them for you.)

Again, the advantage of this approach is that you can prepare for it in advance and it is therefore less apt to end in disaster.

Several excellent examples of a utilizing approach with medical witnesses are found in Marshall Houts Art of Advocacy: Cross-Examination of Medical Experts, at Section 107 through Section 1.13.

Generally the utilizing approach is less risky, so it can be used with a strong expert who would likely withstand a destructive cross but who must be “examined” so as to give the impression of confrontation to “soften the impact.” It is less abrasive, so it can be used where the jury seems to like the expert and would resent a destructive approach. It is easier to perform, so it can be accomplished by a well-prepared novice trial lawyer. But it may be inadequate to save the case where the expert’s testimony has destroyed an essential element of the case. In that situation, a riskier cross must be undertaken unless you have foreseen that situation in pre-trial preparation, in which case you should have considered settlement and avoided the problem altogether.

The Neutralizing Approach

Where the expert is honest, impressive, and well-liked by the jury – but mistaken in his conclusions, use a neutralizing approach to take away the effect of his testimony without attacking his credibility. Here is where your work with your own expert to find the error in the adverse expert’s opinion pays off. A jury is more likely to reject the adverse expert’s theory than to reject him as a person as a result of destructive cross-examination attacking his credibility. Jurors are reluctant to believe a witness, even an expert witness, is motivated by prejudice or personal interest.

Where two experts testify to opposite conclusions, the lawyer who attributes the disagreement to the bias, prejudice, or corruption of his opponent’s expert will likely lose to the lawyer who accepts the opposing expert as a nice person who has simply made a mistake – a mistake that is clearly and simply explained in final argument (not in cross-examination) after the ammunition for the analysis is obtained through neutralizing cross-examination.

An expert can be neutralized by an examination obtaining his admission that his opinion is derived from certain facts or assumptions. It is not necessary to force the expert to admit that the facts or assumptions are incorrect. That can be left to direct or cross-examination of other witnesses. In final argument, you then neutralize the expert by pointing out that the expert may be qualified and may have properly reasoned to his conclusions – but from facts or assumptions demonstrated to be untrue.

For example, the loss of earning capacity conclusions of the expert economist can be shown to be based on certain facts and assumptions regarding life expectancy, proper discount rate, earning capacity prior to injury, and degree of vocational limitation imposed by the injury, the last factor usually based on the testimony of an expert vocational rehabilitation consultant. Once the economist has admitted his conclusions are based entirely on his acceptance of the conclusion of the vocational rehabilitation consultant, the economist (perhaps admired and accepted by the jury) can be neutralized by an attack on the supporting conclusions of the underlying vocational rehabilitation expert (who may not be as impressive or as well liked.)

An expert can be neutralized by obtaining his support for the truth of propositions which are either demonstrably untrue or contrary to the beliefs of a majority of the jurors. The propositions need not even be central to the claim, so long as in final argument you infer that any expert who believes the known falsehood to be true is probably also wrong on his central conclusion. Conclusions of experts who do not use “common sense” are easily disregarded by juries.

Another classic neutralizing technique is “the wedge” whereby the expert is enticed to concede that his field, unlike physics or mathematics, is an imprecise area where reasonable people – including expert witnesses – can come to honestly held differences of opinion. Ultimately this admission allows the jury to disregard experts from both sides and decide the issues based on other facts developed in the presentation.

The neutralizing approach, like its utilizing counterpart, is less risky than the destructive approach because it does not involve a toe-to-toe confrontation with the expert witness, a dangerous zero-sum game with a clear winner and a clear loser. It is harder to implement with a court-wise expert than a mere utilizing technique, but when successful it allows the jury to decide in your favor without having to reject an honest, impressive, well-liked expert witness.

The Destructive Approach

The destructive approach directly attacks the credibility of the expert. It therefore will be most vigorously opposed by the expert, and if the witness is liked by the jury, an unsuccessful attempt at destroying the expert will be resented.

How to impeach the expert is best covered in Younger’s The Art of Cross-Examination.

One must prepare in advance of the cross-examination any attacks on an expert for inability to perceive, recollect or communicate; for bias, prejudice, interest, or corruption; for prior convictions, prior bad acts, or prior inconsistent statements; and for a poor reputation for truth and voracity. Never “fish” for answers on credibility at trial, the expedition is too obvious, both to the witness and the jury.

Direct attacks on inconsistencies in the testimony of the expert witness fall into two categories: the testimony may be internally inconsistent or externally inconsistent. External inconsistency, where statements of the witness are shown to be contrary to demonstrable facts or widely held beliefs, was explained under the neutralizing approach.

Examining for internal inconsistency is much more difficult because both contrary propositions come from the expert witness himself. Unless you are careful the expert will withdraw one statement, modify one, or claim that your lack of understanding of his field prevents you from understanding of his field prevents you from understanding that the propositions are not inconsistent. Approach obliquely, at separate parts of the cross, first the least strongly stated proposition (to lock it in, or failing that, to abandon the line of questioning) then establish the proposition more central to the expert’s position. Do not confront the expert with the inconsistency. Save analysis of the internal inconsistency for final argument, merely obtain the ammunition in cross-examination.

Before using the destructive approach consider two warnings.

First, Gerry Spence, perhaps the greatest trial lawyer of our time, and certainly a man capable of destroying an expert where there is any opportunity for attack, warns us never to kill the witness without the jury’s permission. Just because you can destroy the expert does not mean you should. Firs the expert must do, or be led to do, something which allows the jury to understand why his credibility must be directly attacked.

Second, from Machiavelli, never strike at the King unless you can deliver a fatal blow. If you use the destructive approach, prepare well in advance and be sure you have your facts assembled before you begin. A trial is a contest to develop and keep credibility. At the end of a direct attack on the credibility of the expert witness, someone’s credibility will be destroyed – the expert witness’ or the attorney’s.

Destroy reluctantly, but thoroughly.

In the final part of the article series, I will discuss the final preparation and the “Ten Commandments” in conducting a cross-examination.

- Dean Brett

Date: 8/27/14

In the first part of this article series on the topic of how to prepare for cross examination of the defense expert witness, I discussed why an attorney would cross-examine a defense expert, and the advantages that expert has in influencing a jury. In the second part of the article series, I reviewed the four primary advantages that a trial attorney has against an expert witness in his own professional territory.

In this third part of the series, I’ll discuss the four stages of general preparation for the cross-examination of the defense expert. I have found throughout my career that each stage is crucial to enabling me to deliver the most effective cross-examination possible.

General preparation for cross-examination of a defense expert involves four stages:

1) Learn the expert’s subject;

2) Scout the expert;

3) Use your own expert;

4) Establish realistic goals.

Learn the expert’s subject

With help, time and perseverance, you can learn all you need to know about the usually very narrow part of the subject involved as it applies to your client’s situation.

Find a teacher, perhaps a professor at a local college, to conduct a one-on-one directed reading course. For about one-fourth your hourly rate he will review the literature in the area, recommend several general articles to familiarize you with the field, select articles to familiarize you with the field, select specific materials focused on the narrow aspect of the science involved, and then answer questions the readings raise relevant to your fact situation. You would be surprised how hard a college professor will work for $100 an hour – if he hasn’t already learned he can make more money as an expert witness.

 It’s a great learning opportunity. You can develop some tremendous friendships. If you do it right the first time, you can develop your own expertise in the subject for use in other cases. And sometimes you can even develop your teacher into an expert witness for your own side as he becomes interested in the forensic aspects of the subject matter.

Robert L. Habush’s Art of Advocacy: Cross-Examination of Non-Medical Experts, by Matthew-Bender at Section 1.18(2) lists the more common sources for gathering technical data for use in cross-examining non-medical experts. Harry Philo’s Lawyers Desk Reference can also be an invaluable resource.

If you are going to litigate in a technical area, you have an obligation to learn that field of expertise. A lawyer should no more file a malpractice action against an accountant without understanding the basic principles of accounting, than he would file a contract action without understanding the basic principles of contract law.

If you do not have the time to learn a subject thoroughly enough to face an expert witness, associate someone who does, then practice in another area of the law. But if you do accept the challenge of learning a new field, the experience can be tremendously rewarding.

Scout the Expert

If you face an expert who has published in his field of expertise, then it is worth your while to obtain and review everything the expert has published. Your teacher or your own expert can trace the articles through the appropriate professional index. Index the publications:

(a) for contradictory statements for use in impeachment,

(b) for general principles supportive of your theory, and

(c) for embarrassing quotations about the limits of the expert’s knowledge.

It is amazing how experts writing for each other in technical journals constantly remark about how little they know and how much research there is to do, yet faced with a jury of laymen they can appear so sure of a conclusion adverse to your client – until cited to their own comments about the limitations of knowledge in their field of expertise.

 Even if the writings are not exactly on point, they will often give you a flavor of the expert’s reasoning process, style and personality. And if you are reading articles by an expert, be sure to read the criticisms of those articles by other experts.

Where the expert has not published extensively but has previously testified, trial transcripts and depositions can be obtained from friendly trial lawyers. Start with Jury Verdicts Northwest, a service which compiles all verdicts rendered in Washington State with annotations including the names of the attorneys and the experts called by both sides. Go to the reports, call the opposing attorney and get a copy of the expert’s deposition, listen to a few war stories on how to approach him at trial, obtain the lawyer’s assessment of the expert’s strengths and weaknesses, and if the case was appealed, get a transcript of the trial testimony.

Do all of this before your own deposition of the expert witness. Read the material you obtain. Every expert has his own little tricks to avoid a question he does not want to answer, just like the rest of us. I know I use the same tricks over and over again, and I assume experts do too. And if you have seen a technique before, be waiting with a response.

The heart of preparing for cross-examination of the expert witness is a thorough deposition fully exploring the expert’s qualifications, and conclusions, then assumptions, data, and reasoning used to reach those conclusions.

Use Your Own Expert

Use your own expert to help you learn the subject matter, to scout the adverse expert, and to prepare your cross-examination.

Since anything that can possibly go wrong with the cross-examination of an expert usually does, try out each line of questioning on your own expert to find the defects in your comprehension of the field which may make particular approaches unworkable.

If the upcoming trial is really a battle of experts who disagree, do not let your expert take the position that he is correct based on his superior skill, knowledge, and training. Make the expert explain to you, in simple lay terms, precisely where the adverse expert agrees on common ground, where he accepts different assumptions or “factual” data, where his approaches and reasoning processes differ, and where in each instance the opposing expert is in error.

Attacking the opposing expert as unqualified and biased is not enough, and at times it is even counter-productive, when a jury will more easily believe the expert has simply made a mistake and come to the wrong conclusion, particularly when you can point to exactly where the error was made. Make it an obligation of your expert to explain to you why the defense expert is wrong, so you can explain it to the jury.

Establish Realistic Goals

From the moment the client first walks in the door, everything a good trial lawyer does is focused on one moment – the opportunity he has to stand before the jury in final argument and explain the client’s plight.

Every action the personal injury trial lawyer takes is designed either to prepare for that final argument or to convince an insurance company to pay money so that final argument is never delivered.

Cross-examination is no different. It is merely another opportunity to gather ammunition for final argument. Every cross-examination, every line of questioning, every question is subject to one scrutiny – “How will this help me in my closing argument to the jury?”

The general goal of cross-examination is to advance the “theme” of a case by securing the ammunition needed for final argument.

The conceptual error made by too many lawyers is to analyze the cross, independent of the entire trial, and thereby to set an unrealistic goal – usually the goal of “destroying the witness.” Because of the witness’ combination of expertise, stature, intelligence, and experience, it is unrealistic to expect to “destroy” each expert. Set an achievable goal. Wigmore said that the goal of cross-examination should be to “soften the impact of the witness by confrontation.” With an effective expert, the goal may be no more than to prevent the expert from winning the case for the other side. Don’t expect to win your case in cross-examination of your opponent’s experts, you will be doing better than most if you break even and avoid a disastrous loss.

In Part 4 of this article series, I will discuss the specific preparation of gathering ammunition for use in final argument.

-Dean Brett

 

 

Date: 8/18/14

Motorcycles are a lot of fun to ride, and the rate of motorcycle ownership in the U.S. has risen dramatically recently, with a 75% increase in registrations between 1997 and 2006. The average age of riders has increased as well, from 27.1 years in 1985 to 41.0 years in 2003.

However, the sad reality is that the lack of protection around the rider also means that motorcyclists are at a higher risk for serious injury or death than people riding in vehicles where metal, seat belts, and airbags provide protection.   The larger size of cars and trucks makes them more visible to other drivers, unlike motorcycles that are significantly less visible to other drivers.    

I myself love motorcycles, and I understand why so many people are enthusiasts. I very much prefer to see motorcyclists out on the roads having a good time.  I don’t want to see them (or their heirs) sitting in my office following a motorcycle accident. 

Motorcycles are fun to ride but deadly in a crash

The statistics regarding motorcycle accidents are truly alarming. According to data from the Centers for Disease Control and Prevention (CDC), while in 2008 motor vehicle crash-related deaths involving cars and light trucks reached an all-time low in the US, motorcyclist deaths reached an all-time high, more than doubling between 1999 and 2008.

Many motorcycle accidents happen because motorcycles are less visible than other vehicles on the road, and so other drivers simply don’t see the motorcycle before hitting it.  Thus, in order to make motorcycle riding safer (and thus more enjoyable for everyone), it is important for riders to first; be aware of this problem and second; to do something about it.  This concept of increasing motorcycle visibility is called “conspicuity.”  

Conspicuity – a funny word for an important motorcycle safety concept

The first time I heard the word “conspicuity” was at a deposition of a state trooper for a motorcycle fatality claim I was handling.   It essentially means the art of being conspicuous.  Although it is a funny looking and sounding word, it’s also a crucial one for any motorcyclist. The Washington State Motorcycle Operator’s Manual has a complete section devoted to “Conspicuity”, further indicating how critically important the concept is. To see the section on Conspicuity, click the above link and go to page 32.

Increasing conspicuity means increasing safety

The section has many excellent suggestions for staying visible, or “conspicuous” to other drivers.   It discusses things like:

  • wearing bright colored clothing;
  • always using the headlight;
  • always signaling turns and lane changes;
  • adjusting driving techniques;
  • increasing following distances;
  • never riding in the blind spot of another vehicle;
  •  tapping brake lights when being followed to closely.  

Motorcycle riders need to do everything they can to improve their conspicuity to help give other motorists the opportunity to see and avoid colliding with the motorcyclist.  All of the suggestions in the Operator’s Manual combine to make motorcyclists more visible to other drivers, and hence more likely to avoid being injured or killed.

I wish I could go back in time to review these safety tips with my motorcycle fatality clients. While accidents are often unavoidable in a world where most vehicles outweigh and outsize motorcycles, extra caution and attention to conspicuity may well have made a difference.

-Steve Knapp

If you have been injured in a motorcycle accident and need information about your rights and options, contact Brett Murphy today. To learn how we have helped our motorcycle crash clients, please go to this link.

Date: 8/14/14

In the first part of this article series, I described the reasons that a trial attorney needs to cross-examine an expert witness.

Against the expert witness defending his home territory, the trial lawyer has four main advantages.

1) The trial lawyer can choose not to ask any questions at all, or more likely, can choose not to ask certain questions. He can avoid certain battlefields. The task of preparing to cross-examine an expert witness is largely one of determining which questions NOT to ask.

2) The trial lawyer can choose to ask only questions which require either a “yes” or a “no” answer. He can take away the expert’s most potent weapon – the monologue.

3) The trial lawyer can learn the specific narrow aspect of the expert’s subject matter that is relevant to the specific issue being tried. He can learn that part of the territory on which the battle will be fought.

4) And finally, the trial lawyer can analyze and criticize the expert’s answers in the home territory of final argument, on his own turf, where the expert is speechless.

Effective use of these four advantages minimizes the expert’s strength, his expertise in the subject matter, and maximizes the trial lawyer’s strength, the ability to question narrowly then comment on the answer without reply.

Put it in perspective, right at the start. The average expert witness knows as much about his or her field as you know about law.

“That means a lot of different things. It means, for example, that the knowledge and ability of nearly any expert is uneven. It means that the typical doctor knows no more about hepatitis, pyloric stenosis or coronary arrhythmia than the average lawyer knows about promissory estoppels, renvoi, or the doctrine of worthier title. It means that a lawyer can learn enough about the flash point of waxes to cross-examine an electrical engineer who specified wax paper condensers in a color television set designed to operate at just 5 degrees lower than the burning point of wax. It also means that the witness – unless he has had previous courtroom experience – is going to be scared.” McElhaney, Trial Notebook, page 167. *

In the remaining parts of this article series, I will discuss:

  • The three conceptual categories of potential lines of questioning;
  • Final preparation for the cross-examination;
  • The Ten Commandments of cross-examination, plus four more.
  • An example cross-examination of a defense economist.

- Dean Brett

* McElhaney, James W., Trial Notebook, The American Bar Association, 1981

Date: 8/12/14

I recently read an article by Sarah Mui regarding whether judges should allow questions from jurors during a jury trial.  The article brings up some interesting points.

In the original Boston Globe article that Ms. Mui references, a probation trial jury submitted 281 questions to the judge, many of which he posed to witnesses, some of which he did not address. There has been mixed reaction to allowing these questions from the jury.

Both articles quote from “one defense lawyer” Rosemary Scapicchio, who characterized juror questions as a “dangerous step” and who does not believe juror questions should be allowed, because it requires a juror to advocate for one side or the other without having heard all of the evidence.  

I respectfully disagree with Ms. Scapicchio’s opinion, at least as far as civil trials go.  

In Washington State, courts allow jurors to submit written questions, following the testimony of each witness, to the bailiff who in turn hands them to the judge.   The juror submitting such questions is not identified in the question (although the attorneys can see who hands up a question to the bailiff, especially if there are only one or two questions). 

After reviewing those questions and discussing them with counsel, the judge asks the attorneys whether they object or agree to allow each juror question submitted.   Depending upon the nature of the questions and any objections or comments from counsel, the judge may read juror questions as written, may paraphrase them or may simply ignore objectionable questions.   

Some juror questions are directed to the testifying witness and some to the judge.  Some juror questions directed to the witness are good questions and show that the juror is giving good thought to the issues in the case. Sometimes, they sound like they are from a plaintiff or defendant, and those can often cut both ways for or against either party.  

But to the extent the judge allows questions for the witness (which the judge asks the witness on behalf of a juror) they help the court (and the parties) ferret out the issues.   This “pressure” from jurors should inspire attorneys to make sure they are very prepared on the issues before going to trial.  There are always surprises at trial, but thorough preparation will minimize them.  

I find juror questions to be a valuable tool during trial.  Ultimately, the jury will be deciding the case, and if they have questions or concerns I’d like to know about them during the trial so I can try to address them during trial. Without direct feedback from the jury, it can sometimes be difficult knowing how the jury is absorbing or receiving the information the attorneys are trying to communicate to them with witnesses and exhibits.  

One criticism of allowing juror questions involves the risk that a question could prejudice or adversely affect other jurors on the case.   That is not a valid criticism because during deliberations any juror can ask whatever questions he or she may have about the case or the trial evidence, and the attorneys will never know what questions are asked or what responses are given.   Thus, the risk of such a question is not lessened by eliminating juror questions.  On the other hand, if such a question is asked during trial, the attorneys and judge have an opportunity to address it.  

- Steve Knapp

For anyone seeking information about your rights and options after being injured in an accident, contact the Brett Murphy attorneys today by calling 1-800-925-1875 or by completing our simple contact form.

Date: 8/11/14

Throughout my years as a trial attorney, I have found that one of the most challenging aspects of trial is cross-examining an expert witness. I’ve written an article series describing my experience and the methods I’ve used that have allowed me to gain real advantages through cross-examination of an expert witness. These methods have proven highly successful for me for 40+ years. I will be publishing the article series over the next several days, so keep an eye out for the next installment.

Part 1 - Why cross-examine an expert witness?

The cross-examination of an expert witness is one of the trial lawyer’s most difficult tasks. The expert must be assumed to be an intelligent person who has focused his intelligence on the particular scientific, technical, or specialized field of inquiry. The rules of evidence allow the expert witness certain unique advantages, including:

  • the chance to state his opinion (ER 702);
  • to include conclusions on the ultimate fact to be decided by the jury (ER 704);
  • to be buttressed by facts or data not in evidence (if of a type reasonably relied upon by other experts in the particular subject matter) (ER 703);
  • to include facts even if those facts or data would not otherwise be admissible in evidence (ER 703);
  • to include facts or data which the expert need not disclose in direct examination (ER 705);
  • allowing the jury to be told the expert was appointed not by your opponent, but by the court (ER 706).

To make matters even more challenging, frequently the expert witness has more courtroom experience and savvy than the cross examiner.

“As a general thing, it is unwise for the cross-examiner to attempt to cope with a specialist in his own field of inquiry. Lengthy cross-examination along lines of the expert’s theory is easily disastrous and should rarely be attempted.” Francis Wellman, The Art of Cross-Examination, 1903.

Why then ever cross-examine an expert witness? Only because you have no alternative.

If you bring a claim of professional negligence or products liability, you are claiming that the defendant made an error in his own field of expertise, and you thereby incur an obligation to your client to prove the standard of conduct in that field of expertise and to cross-examine expert witnesses called to defend on the basis that the standard is not as you allege, or if it is, that it was met.

To fail to cross-examine is to concede the heart of the claim. Even if you try only “simple” negligence claims, you must be prepared to meet witnesses with expertise in engineering, accident reconstruction, medicine, psychology, vocational rehabilitation, and economics, to name a few.

Precisely because they are so difficult to examine, your opponent will insist on presenting the testimony of experts on the critical issues of the case. Those experts, because they are looked up to by the jury and because they are often hired for the specific purpose of destroying a necessary element of your proof, often cause more damage than lay witnesses and thus compel cross-examination. Failure to examine expert witnesses may be viewed by the jury as a surrender on the critical issues they support.

The next installments of this article series will be:

  • The four main advantages the trial lawyer has against the expert witness defending his home territory;
  • The four stages of general preparation for cross-examination of a defense expert;
  • The three conceptual categories of potential lines of questioning;
  • Final preparation for the cross-examination;
  • The Ten Commandments of cross-examination, plus four more.
  • An example cross-examination of a defense economist.

- Dean Brett Personal injury attorney Dean Brett has been practicing injury and wrongful death law for 40+ years. Learn more about Dean, his practice, and his cases at his biography page. To contact the Brett Murphy attorneys with questions about a potential claim, please call 1-800-925-1875 or complete our simple contact form.

Date: 8/6/14

A man keeps multiple loaded guns unsecured throughout his house which he shares with a girlfriend, who has periodic visits from her nine year old son.  For two days the man does not notice that one of the loaded guns is missing. The nine year old boy has put one of the loaded guns into his backpack, and taken it to school. The gun discharges from the backpack and critically injures a classmate.  Should the man be held to have “caused” the personal injury to the classmate?

The breakdown of judicial opinions throughout the case history demonstrates this is a divisive issue.

Six judges who faced this question in State v Bauer said “Yes”: the trial court judge, two judges from the Court of Appeals, and three from the Supreme Court.

Seven judges said “No”: One from the Court of Appeals, and six from the Supreme Court.  

In State v Bauer, decided July 17, 2014, the Washington State Supreme Court held 6-3 that, based on “…mixed consideration of logic, common sense, justice, policy, and precedent…” there is no causation in the criminal context here because causation in the civil negligence context is broader than in the criminal, and civil causation would not be found here under existing civil precedent. The court’s reliance on civil precedent to reach a decision in a criminal case may make this case problematic for lawyers representing plaintiffs on causation issues in personal injury cases.

The following precedents were considered in the ruling:

  • Sailor v. Ohlde, 71 Wn. 2d 646, 430 P.2d 579 (1967) - The court answered “No” to the question of whether “…the owner of an automobile who leaves the key in the ignition switch (can be civilly) liable for injury or damage caused by a stranger who enters upon private property and steals the automobile.”
  • Pratt v. Thomas 80 Wn. 2d 117, 491 P.2d 1285 (1971) - The court reached the same conclusion regarding an accident involving a car stolen from a public parking lot.
  • Kim v. Budget Rent-A-Car Systems, Inc., 143 Wn. 2d 190, 15 P.3d 1283 (2001) - The court found no causation when a rental car company left an unlocked car in its parking lot with the keys in the ignition, the car was stolen and involved in an accident.

The majority accepted the analogy that an unsecured loaded handgun should be treated like a car with the keys left in the ignition.

On the other hand, the six judges who would have allowed the issue to go to the jury undoubtedly would have found causation in the civil context as well. Indeed, even the majority cites civil cases which seem to imply causation.

  • A vendor who sells alcohol to a minor may be the legal cause of injuries to a second minor who obtained the alcohol purchased by the first minor. Schooley v. Pinch’s Deli Market, Inc., 134 Wn. 2d 468, 951 P.2d 749 (1998).
  • A defendant is liable when he leaves an operational tractor unguarded on his property, which is then stolen by children and used to injure plaintiff’s property. Bronk v. Davenny, 25 Wn. 2d 443, 171 P.2d 237 (1946).

According to the Supreme Court, a loaded handgun is more like a car with the keys left in it than a bottle of booze illegally sold to a minor or an operational tractor left accessible to children. Close question.

Plaintiff lawyers, who regularly represent victims of negligence, can take some solace in the court’s distinction between “causation” in the civil and criminal contexts. The court repeatedly emphasizes (even dedicating a section of the opinion to the proposition) that “Causation in Criminal Law is Different from Causation in Tort.” The majority repeatedly points to the lesser causation standard in the civil negligence context:

  • “…criminal law and tort law serve different purposes and therefore have different principles of legal causation…”
  • “… causation in tort may be much broader than causation in criminal law…”
  • “… legal causation is defined more narrowly in criminal law than it is in tort law…”
  • “… the tort liability concept of proximate cause is generally too broad and comprehensive to be appropriate in a criminal proceeding…”
  • “… liability tends to extend further in tort cases…”

 Although the court took pains to distinguish causation in the criminal and civil contexts, the court ends the opinion with the comment:”…even our civil cases do not extend liability as far as the State seeks to do in this case… ” This comment will undoubtedly be cited by insurance defense attorneys in civil cases in support of using State v Bauer to limit causation in civil situations as well as in criminal.

In the criminal context, a conviction for assault in the third degree requires criminal negligence which “… causes bodily harm to another person…” Noting that keeping loaded weapons around the house is not in itself a crime, and that the nine year old boy’s theft of the loaded weapon was an “intervening cause”, the majority held legal causation (i.e. considerations of “…logic, common sense, justice, policy and precedent…”) meant that the causation requirement had not been met and therefore that a criminal charge of assault in the 3rd degree had to be dismissed.

- Dean Brett

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