Cross-Examination: The Comprehensive Guide for Experts

Rating:
Summary: Another masterstroke for these authors.
Review: Cross-examination. The mere utterance of these words can strike fear in even the most seasoned testifying expert. Never testified before or just starting out in litigation consulting? The prospect of cross-examination can provide more consternation, self-doubt and sleeplessness than a teenage first date. And, with good reason. The purpose of cross-examination is for opposing counsel to find any little chink in your testimonial armor and exploit it to discredit you, your credibility, your honor, and ultimately, your professional viability. Still don't have your attention? Try this on for size.

"No expert is immune to cross-examination. Whether it's their fees, their bias, their lack of familiarity with the facts, or their faulty methodology, every expert has an Achilles' heel. Through creativity, determination, and, above all else, hard work, you should be able to find it. Once you become adept at doing so, you will be able to destroy any expert, every time."

This passage comes from the very text designed to teach attorneys how to "destroy" expert witnesses. If this doesn't grab you, I would strongly suggest you find a different field of practice.

So, how does the expert witness proceed? Preparation, preparation, and more preparation. In addition, there are many sources of reference an expert can utilize to mitigate this "destructive" attitude. Steven Babitsky and James J. Mangraviti, Jr., have made it their quest to utilize their considerable trial experience to galvanize the expert community by providing just such resources. Their latest treatise, CROSS-EXAMINATION: THE COMPREHENSIVE GUIDE FOR EXPERTS is a marvelous example of just such a resource. Published in 2003, this book is destined to become an invaluable addition to an expert's library.

In the Preface, the authors state, "This book has been written to be an expert's comprehensive and advanced guide to excelling at the art of responding to cross-examination." They have succeeded in high fashion. Like most of their previous offerings, the authors provide numerous examples of question and answer exchanges along with the requisite "lesson" from each exchange.

The authors reserve 117 pages of this book for a chapter titled, "What Experts Can Expect To Be Asked on Cross-Examination," one filled with representative question and answer exchanges. These exchanges cover a variety of areas, which are the subject of hard-line questions an expert can expect. A few of these areas are bias, qualifications, prior testimony and writings, honesty and credibility and interaction with retaining counsel. Each of these potential lines of impeachment is covered with various question and answer examples and the requisite lesson. This chapter is probably one most experts will want to revisit when preparing for difficult cases or when facing an attorney with a reputation for being hard on experts.

The last chapter of the book is reserved for what the authors describe as becoming a dangerous expert. This is defined as "an expert who is highly resistant to cross-examination and who is able to take advantage of the opportunity to turn the tables on opposing counsel." The dangerous expert is one who concerns opposing counsel, who produces very few positive results for opposing counsel and who can easily trigger a backfire to opposing counsel on cross-examination. These experts are deemed uncommon and in high demand. Albeit the shortest chapter in the book, it is one of the most powerful.

As advertised, this book is comprehensive at 399 pages however, don't let the length of the book fool you. It flows very smoothly and is absorbing with the voluminous question and answer passages. The chapters contained in this book are:

Chapter 1 - Introduction and Executive Summary
Chapter 2 - How an Attorney Prepares to Cross-Examine an Expert
Chapter 3 - How to Prepare for Cross-Examination
Chapter 4 - How Jurors Perceive Cross-Examination of the Expert
Chapter 5 - Advanced Cross-Examination Techniques for Experts
Chapter 6 - What Experts can expect to be asked on Cross-Examination
Chapter 7 - Legal Limitations to the Scope of Cross-Examination
Chapter 8 - Defeating Counsel's Cross-Examination Tactics
Chapter 9 - How to Answer Trick and Difficult Questions
Chapter 10 - How to Become a Dangerous Expert Witness

The only criticism I have for this offering would be Chapter 7 - Legal Limitations to the Scope of Cross-Examination. This chapter provides a variety of case citations relative to a variety of situations and reads more like a legal textbook than the rest of chapters. That said, it will provide the expert with case cites relative to specific situations that an expert could use in testimony.

As stated in the opening, it is my belief this book is destined to become a staple in any expert's library. Once read, it will provide an invaluable reminder to every expert when preparing for a trial or deposition.