McKiggan Invited to Present at CBA Professional Development Conference
Cross Examination of Experts
I am privileged to have been asked to help organize and present a panel discussion involving cross examination of experts at the Canadian Bar Association’s 2011 Annual Professional Development Conference in Halifax.
I was honoured to be a part of a panel including Chief Justice Joseph Kennedy and Glen Anderson Q.C. Justice Kennedy and Mr. Anderson both provided interesting and insightful advice regarding cross examination.
A great deal has been written on the topic of cross examination in general and cross examination of experts in particular. Most authors and scholars refer to cross examination as an art. While I am far from an artist, I thought it might be helpful to post what I view to be some general principles of cross examination of experts.
So here are 7 Tips on Cross Examination of Experts
Act like John Wayne:
I’m a big fan of western movies. There are few actors who are more famous for their rolls in westerns than John Wayne. John Wayne was once asked what the secret of his success was as an actor. I think his advice is equally valuable to anyone preparing for cross examination:
“Talk low, talk slow, and don’t say too much.”
The courts have indicated that preference for expert testimony that is clear and concise. Your cross examination should illicit information the same way.
Remember the Cat:
Lawyers by nature are curious. We often can’t resist asking “why?” However, we should all remember what curiosity did to the cat. It can do the same thing to your case.
A lawyer should never ask a question that they don’t know the answer to because the answer could kill your client’s case. (By the way, before I get any comments from PETA, no cats were harmed in the taking of this picture.)
Be a Leader:
The Green Bay Packers is one of my favourite NFL teams. Former quarterback Brett Farve is the all time passing leader with more than 76,000 yards as well as the NFL’s all time touch down leader.
When conducting their cross examination lawyers should ask leading questions. You want the evidence to be limited to the point that you want to confirm. Asking open ended questions simply encourages the witness to expound upon the evidence they have already provided through direct examination and to reinforce the defendant’s theory of the case.
One Step at a Time:
An ideal cross examination should only introduce one new fact or point per question.
Be the Turtle, not the Hare
Sometimes we are tempted to rush through our cross examination to get to the question that (we think) will crush the opposing expert. Unfortunately, it doesn’t work that way. Building your cross examination slowly allows the judge or the jury to see how the expert’s evidence supports the theory of your case.
Drilling for Oil
When conducting a cross examination, it is useful to remember the advice of Texas oil drillers:
“When you strike oil, stop digging.”
When you get the answer you were looking for in cross examination, stop talking. Sit down.
Think like Irving
Irving Younger is a famous American lawyer and law professor. He is the author of The Art of Cross Examination and is famous (at least among lawyers) for his Ten Commandments of Cross Examination.
Younger supposedly once said that the first rule of cross examination should be “DON’T”!
Don’t proceed with cross examination unless doing so will advance your client’s case. If the witness has not done anything to damage the theory of your case, or has not said anything that cannot be addressed by other witnesses, there is no need to conduct cross examination. Doing so only increases the chance that the witness will say something that can harm your client’s case.
I had a great time at the CBA conference and, as usual, I learned a lot. I’m looking forward to next year.
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