Keep Experts Cool for a Credible Response

Experts can shine or be demolished during cross. An easy way for opposing counsel to destroy otherwise sterling expert testimony is to goad the expert into responding defensively by asking questions in an insulting or outright attacking tone.

Your experts do best if they don't consider the question an attack (regardless of vocal tone), but rather as an opportunity to further clarify and educate. Follow this advice and your expert won't feel tempted to negate or fight everything opposing counsel says. Encourage your expert to simply listen attentively to the content of the question, allowing he or she to answer in ways that may surprise opposing counsel and help your expert maintain a positive footing.

For example, opposing counsel asks, verging on the insulting: "Isn't it true that the validity of the psychological tests you gave is suspect?" Instead of answering defensively: "I personally examined the validity scales of every test," a more constructive answer might be "Certainly, validity is always a primary concern, as are reliability, standardization and other such issues." Using the question to clarify an issue, the expert scores with the jurors and in the process sidetracked opposing counsel (who was undoubtedly expecting the defensive response).

Here is another example of the type of question which tends to put experts on the defensive: "Isn't it true that Drs. X, Y and Z have written that the test you used to come to your conclusions is subjective and unreliable?" Experts who get angry and defensive in response to this line of questioning do not do well with jurors. Suggest that your expert concede what is indefensible, and support that which is: "Indeed, these doctors say that under certain circumstances – unlike the circumstances in this case – this test may be of limited value." Opposing counsel is now obliged to ask your expert about those "certain circumstances," (or if not, you can on re-direct) and your expert can reiterate how this test has value in this particular circumstance.

Keeping expert cool inevitably paves the way to a more credible response.