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Does an Oath Inoculate a Medical Witness from Being Biased in Favor of Other Healthcare Providers?
“Cross-examination is the greatest legal engine ever invented for the discovery of truth.” – John Henry Wigmore
The existence of financial bias is a well established area of cross-examination when dealing with the credibility of witnesses and experts alike. Indiana law is clear that the income of an expert derives from his/her work as an expert is highly relevant and goes directly to bias and prejudice. See Ind.R.Evid. 411, 616; Ind. Pattern Jury Instruction No. 1.09; Brown-Day v. Allstate Ins. Co., 915 N.E.2d 548, 551-52 (Ind. App. 2009), trans. denied; Pickett v. Kolb, 237 N.E.2d 105 (Ind. 1968); Yates v. Grider, (1969) Ind. App. 251 N.E. 2d 846; Kleinrichert v. State, 530 N.E.2d 321 (Ind. App. 1980). As the Indiana Supreme Court stated in Pickett, supra:
It has long been the law in all jurisdictions of which we are aware that a witness may be properly cross-examined with respect to his interest in the litigation in question. He may be cross-examined with reference to his motives, his feelings, friendly or unfriendly towards the parties or other witnesses involved, his employment by either of the parties or some third party, and a contractual relationship with reference to his interest in the litigation and any financial considerations that might have influenced him.
[P]roof of liability insurance in and of itself is not admissible, but such a principle may not be expanded to the extent that it serves as a means of excluding otherwise competent evidence which is relevant to the issues involved in the trial. We do not think that a trial court may arbitrarily exclude otherwise competent and relevant evidence merely on the ground that it will reveal an insurance carrier is involved.
In this case, as previously stated, if a party sees fit to present a witness on his behalf, the opposing party has a right to cross-examine that witness with reference to all his interests in the litigation, including who is compensating him or giving him anything of value which resulted in his being a witness or participating actively in the litigation.
237 N.E.2d at 107-08. The Indiana Supreme Court’s rules trump any statute when the provisions conflict. In re Termination of the Parent-Child Relationship of B.H., 2013 Ind. App. LEXIS 256 (Ind. Ct. App. May 30, 2013). The principle that this rule of law survived the adoption of the Indiana Rules of Evidence was confirmed in Brown-Day, 915 N.E.2d at 551-52. Indiana Rule of Evidence 411 explicitly excepts evidence of bias from the restriction on presenting evidence of insurance. This Rule provides:
Rule 411. Liability Insurance
Evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully. But the court may admit this evidence for another purpose, such as proving a witness’s bias or prejudice or proving agency, ownership, or control. [Emphasis Added].
Indiana Rule of Evidence 616 recognizes that witnesses are subject to cross examination on topics addressing bias. This Rule provides:
Rule 616. Witness’s Bias
Evidence that a witness has a bias, prejudice, or interest for or against any party may be used to attack the credibility of the witness. [Emphasis Added].
Evidence that a witness has a bias, prejudice, or interest for or against any party may be used to attack the credibility of the witness. The fact that embraces the topic of the Patient Compensation Fund should not prevent such inquiries. By analogy inquiries regarding a juror’s interest in an insurance company is a valid line of inquiry. In the matter of Beyer v. Safron, 84 Ind. App. 512, 151 N.E. 620 (1926), the court stated:
[L]itigants are entitled to a trial by a thoroughly impartial jury, and to that end have a right to make such preliminary inquiries of the jurors as may seem reasonably necessary to show them to be impartial and disinterested. It is a matter of common knowledge that there are numerous companies engaged in such insurance, and that many of the citizens of the state are stockholders in one or more of them. Such citizens may be called as jurors, and if at such time they are such stockholders, or otherwise interested in any of such companies, their pecuniary interest might disqualify them to sit as jurors.
Id. at 621.
Panel members should be able to be questioned regarding their financial interest in the outcome of a medical malpractice case since each of them our participants in the patient compensation fund and are financially impacted by any monies awarded from the fund. The collective impact of favorable plaintiff’s verdicts is not trivial and has a financial impact on panel members. The prohibition on mentioning insurance is not absolute. Under Rule of Evidence 411, evidence that a witness was insured against liability is admissible to prove their “bias” or “prejudice”. While recognizing all of these arguments exist, the Court of Appeals here in Indiana has refused to overturn a trial court’s discretionary decision to exclude such evidence pursuant to Indiana Rule of Evidence 403. This rule leans in favor of admitting such evidence (unlike Rule 608 which deals with evidence of criminal convictions). The attendant prejudice must substantially outweigh the probative value. A trial court’s decision on this issue may only be reversed for an abuse of that discretion to n deciding this issue. In Tucker v. Harrison, 973 N.E.2d 46 (Ind. App. 2012) upheld the trial court’s decision to exclude such evidence noting:
Any specific bias on the part of the three members of the medical review panel in this case would certainly be relevant. See Ind. Evidence Rule 616 (“For the purpose of attacking the credibility of a witness, evidence of bias … of the witness for or against any party to the case is admissible.”). Each member of the review panel signed the required oath. Dr. Michelle Murphy, one of the review panel members, testified at trial that she signed the oath, that she took the oath seriously, and that she had no bias for either Tucker or Dr. Harrison when she considered the evidence and gave her opinion. (citations omitted). Dr. Margaret Miser, also a member of the review panel, also testified that she took the oath, honored it, and complied with it in her work on the review panel. [Emphasis Added].
Id. at 55. Alas, if an oath guaranteed truth there would be no need for cross-examination or even a trial for that matter. Bias can occur on an unconscious level and is not cured by being placed under oath. If not, why is it so difficult to get local doctors to assist and go on the record in medical malpractice case against another doctor? The Court of Appeals went on to observe:
[The Plaintiff’s] proffered evidence merely speculates through Dr. McLaughlin’s expected testimony that every doctor in Indiana—all of whom are required by law to participate in the Patient’s Compensation Fund and to serve as review panel members-have such an interest in limiting their financial exposure by limiting payouts from the Patient’s Compensation Fund that they would render opinions based on such interest. However, [the Plaintiff] has not shown that Dr. McLaughlin is qualified to testify about system-wide bias, if any exists, and she offers no evidence of the amount of the financial exposure doctors allegedly face from which the likelihood of such skewed opinions could be assessed. By statute, the financial exposure could be as little as $100 per year. See Ind.Code § 34–18–5–2(e). (Emphasis Added).
Id. at 55. The Court of Appeals then held that:
When balanced against the prejudicial effect of allowing evidence of professional liability insurance, the potential for bias in this case is so remote as to warrant exclusion. ***The trial court did not clearly err in excluding the proffered bias testimony.
Id. Ultimately the issue remains one for the trial court to resolve in its discretion. In order to succeed in present such evidence of bias, quantifying the amount of this contribution to the patient compensation fund by each doctor may be necessary to overcome a claim of unfair prejudice by the defense. The size of this contribution by a panel member may well vary depending upon the area of practice, the doctor’s risk history and the true number of practitioner’s that participate in the Fund. See the Schedule below and the dollar amounts of the Compensation Fund surcharge by classification of specialties found in Indiana’s Administrative Code:
These classes breakdown as follows in terms of areas of practice per 760 IAC 1-60-3 (Rule 60):
760 IAC 1-60-3 List of physician specialty classes
Authority: IC 34-18-5-2
Affected: IC 34-18-5-2
Sec. 3. The list of physician specialty classes required by IC 34-18-5-2 is as follows:
Indiana Department of Insurance
Patient’s Compensation Fund
Physician Class Plan
Class 0
ISO Code Specialty
80001 Resident Nonmoonlighting
80221 Resident Moonlighting (No ER)
80230 Aerospace Medicine
80231 General Preventive Medicine – No Surgery
80234 Pharmacology – Clinical
80236 Public Health
80240 Legal Medicine and Forensic Medicine
80248 Nutrition
80249 Psychiatry (Including Child)
80250 Psychoanalysis
80251 Psychosomatic Medicine
80254 Allergy
80256 Dermatology – No Surgery
80263 Ophthalmology – No Surgery
80266 Pathology – No Surgery
Class 1
ISO Code Specialty
80233 Occupational Medicine
80235 Physical Medicine and Rehabilitation
80237 Diabetes – No Surgery
80238 Endocrinology – No Surgery
80239 Family Practice – No Surgery
80241 Gastroenterology – No Surgery
80242 General Practice – No Surgery
80243 Geriatrics – No Surgery
80244 Gynecology – No Surgery
80245 Hematology – No Surgery
80246 Infectious Disease – No Surgery
80247 Rhinology – No Surgery
80252 Rheumatology – No Surgery
80255 Cardiovascular Disease – No Surgery
80257 Internal Medicine – No Surgery
80258 Laryngology – No Surgery
80259 Neoplastic Disease – No Surgery
80260 Nephrology – No Surgery
80261 Neurology (Including Child) – No Surgery
80262 Nuclear Medicine
80264 Otology – No Surgery
80265 Otorhinolaryngology – No Surgery
80267 Pediatrics – No Surgery
80268 Physicians (Not Otherwise Classified) – No Surgery
80269 Pulmonary Disease – No Surgery
80420 Family Physicians – No Surgery
Class 2
ISO Code Specialty
80223 Resident Moonlighting (with ER)
80253 Radiology – No Surgery
80280 Radiology – Minor Surgery
80282 Dermatology – Minor Surgery
80289 Ophthalmology – Minor Surgery
80292 Pathology – Minor Surgery
80425 Radiation Therapy – Not Otherwise Classified
80431 Shock Therapy
Class 3
ISO Code Specialty
80109 Physicians – No Major Surgery
80114 Surgery – Ophthalmology
80132 Physicians (Not Otherwise Classified) – Minor Surgery
80172 Physician (Not Otherwise Classified) – No Major Surgery
80270 Rhinology – Minor Surgery
80271 Diabetes – Minor Surgery
80272 Endocrinology – Minor Surgery
80273 Family Practice – Minor Surgery
80274 Gastroenterology – Minor Surgery
80275 General Practice – Minor Surgery
80276 Geriatrics – Minor Surgery
80277 Gynecology – Minor Surgery
80278 Hematology – Minor Surgery
80279 Infectious Diseases – Minor Surgery
80281 Cardiovascular Disease – Minor Surgery
80283 Intensive Care Medicine – Minor Surgery
80284 Internal Medicine – Minor Surgery
80285 Laryngology – Minor Surgery
80286 Neoplastic Diseases – Minor Surgery
80287 Nephrology – Minor Surgery
80288 Neurology (Including Child) – Minor Surgery
80290 Otology – Minor Surgery
80291 Otorhinolaryngology – Minor Surgery
80293 Pediatrics – Minor Surgery
80294 Physicians (Not Otherwise Classified) – Minor Surgery
80421 Family Physicians (GP) – Minor Surgery – No OB
80422 Catheterization, Not Otherwise Classified
80424 Emergency Medicine – No Surgery
Class 4
ISO Code Specialty
80000 Family Practice – with OB
80101 Broncho-Esophagology
80115 Surgery – Colon and Rectal
80117 Surgery – GP (Not Primarily Engaged in Surgery)
80145 Surgery – Urological
80151 Surgery – Anesthesiology
80163 Radiation Therapy – Employed Physicians or Surgeons with Major Surgery
80428 Physicians – Minor Invasive Procedures – Myelography
80434 Physicians – Minor Invasive Procedures – Lymphangiography
80437 Physicians – Minor Invasive Procedures – Acupuncture
80440 Physicians – Minor Invasive Procedures – Laparoscopy
80443 Physicians – Minor Invasive Procedures – Colonoscopy
80446 Physicians – Minor Invasive Procedures – Needle Biopsy
80449 Radiopaque Dye Injection
Class 5
ISO Code Specialty
80102 Emergency Medicine – No Major Surgery
80103 Physicians – Surgery – Endocrinology
80104 Physicians – Surgery – Gastroenterology
80105 Physicians – Surgery – Geriatrics
80106 Surgery – Laryngology
80107 Physicians – Surgery – Neoplastic
80108 Physicians – Surgery – Nephrology
80158 Surgery – Otology
80159 Surgery – Otorhinolaryngology
80160 Physicians – Surgery – Rhinology
80419 Family or General Practice – Major Surgery
Class 6
ISO Code Specialty
80141 Surgery – Cardiac
80143 Surgery – General Not Otherwise Classified
80155 Surgery – Plastic – Otorhinolaryngology
80156 Surgery – Plastic Not Otherwise Classified
80157 Surgery – Emergency Medicine
80166 Surgery – Abdominal
80167 Surgery – Gynecology
80169 Surgery – Hand
80170 Surgery – Head and Neck
Class 7
ISO Code Specialty
80144 Surgery – Thoracic
80146 Surgery – Vascular
80150 Surgery – Cardiovascular Disease
80154 Surgery – Orthopedic
80171 Surgery – Traumatic
Class 8
ISO Code Specialty
80152 Surgery – Neurology (Including Child)
80153 Surgery – Obstetrics/Gynecology
80168 Surgery – Obstetrics
The facts the Indiana Court of Appeals had to assume given the underdeveloped record before the trial court, substantially underestimated the amount of money contributed by doctors and other healthcare providers on a yearly basis. While by statute, the financial exposure could be as little as $100 per year. See Ind.Code § 34–18–5–2(e). This is not the reality. Depending on the area of practice, the actual dollar amounts contributed by healthcare providers are from 2,222% to 25,186% higher than the $100 annual fee assumed by the Court of Appeals! The actual potential for bias when viewing the real numbers is neither remote nor trivial. Such evidence of financial bias on the part of Panel Members should be admissible and evaluated by the finder of fact. The probative value of such evidence is high and is not substantially outweighed by the risk of unfair prejudice.
Plotting Your Strategy: Does Your Trial Have a Theme?
A theme acts as the unifying thread of your case. It is a thing that motivates the jurors to take action. Your theme needs to be integrated into your jury void dire, opening statement, direct and cross-examination, closing argument and jury instructions.
There are number of potential themes. Watch movies and see how things are developed and see what are the best and emotive ones. I have a book that has nothing but quotes from various movies which I try to interject into my closings to highlight the theme and make them more interesting and compelling. For example, a closing argument may dealt with the themes “profits over safety” and “accepting responsibility“. Here is an introduction from one of my closing arguments:
This is an important case. It’s important for a lot of reasons – as I said at the beginning of this trial, it’s a case about accepting responsibility and in this case Mr. Smith did not accept responsibility. Mr. Smith ignored facts. Mr. Smith ignored laws. Mr. Smith was concerned about one thing and one thing only and that was himself. One of the things that I discussed with you at the very start of voir dire was this idea that we do not allow profits to take priority over safety. There are a lot of good reasons why we have our safety laws, but as I discussed, you have to have laws and you have to make people accept responsibility for the harms and the losses that they have caused, because if you fail to do that there’s absolutely no incentive for someone to be responsible.
Below is a short list of some themes:
a. Safety – We do not allow profits to take priority over safety.
b. Keeping Promises – A man’s word is bond.
c. Preciousness of Life – As Will Munny put it in the western Unforgiven, “It’s a hell of a thing, killing a man. Take away all he’s got and all he’s ever gonna have.” That is what happened here.
d. David & Goliath – Everyone loves to see the little guy prevail over the big bully whether it be the government or a large corporation.
e. Theft of Innocence – When a child is injured or emotional traumatized by an event or act, their life is never the same and the joy of childhood is ripped away.
f. Right vs. Wrong – You may be able to paint the case in simple terms which we are all taught as children; you do what is right because that is your duty.
g. Failure to Accept Reality – Don’t Confuse me with the facts, my mind is made up.
h. Greed/Selfishness – Such things often lead people to take short cuts and ignore their responsibilities to others.
i. Struggling to Overcome Impossible Odds/Courage– Everyone cheers for a person who bravely soldiers on against difficult circumstances. Perhaps your client was seriously injured and has struggled to regain some semblance of his life. His efforts are heroic and worthy of the jury’s admiration.
Themes in cases are virtually endless and only confined by your imagination. All great literature, including the bible, strike various themes that describe why we and what we should do. Tap into these themes and use them to unify your opening statement and closing argument.
Find those descriptive words and themes that best etch a picture in the jury’s mind about which your case is all about. Return to the themes raised in your opening statement and hammer them home in your examinations and closing. You may do this with topically leading questions such as, “I want to talk to you about the day where everything changed for Mary, do you understand?” Or it might take the form of, “I want you to tell the jury, about how this incident changed your life,” and then delve into the topic as if the witness were your client. Whatever powerful words you’ve created to draw the jury into your client’s story should be used to tie the evidence together for them with your questioning.
Hammer home your themes on cross-examination through the use of rhetorical questions and deductive logic.
Shutting Off the Defense Doctor’s Flood of Misinformation
In my last post, I discussed an analogy to deal with tactics used by your opponent to muddy the waters. Well, the problem is you have to drag the hogs out of the spring waters and it takes time to clear matters up. What if you could keep them out of the water altogether?
Have you ever had a defense doctor summarize everything under the sun regarding your client’s medical history in an effort to cloud the issues or mislead the jury, knowing you cannot afford to drag every doctor into court to undo the harm? Well a good portion of such evidence may be totally inadmissible.
Contrary to what a number of attorneys argue. The Rules of Evidence do not permit the admission of materials relied upon by expert witness for truth of matters they contain, if the materials are otherwise inadmissible. Rules of Evidence Rule 703. Faulkner v. Markkay of Indiana, Inc., 633 N.E.2d 798. (Ind. Ct. App 1996). The Rules simply allow the expert’s opinion to be based upon matters outside the official court record, if it is the sort of information typically relied upon in the expert’s field to render an opinion.
Evidence Rule 703 states, “[e]xperts may testify to opinions based on inadmissible evidence, provided that it is of the type reasonably relied upon by a experts in the field.” Ind. Evid. R. 702 permits the admission of expert opinion testimony but not opinions contained in documents prepared out of court by other medical doctors. Evidence Rule 703 permits a testifying expert to rely on such materials, including inadmissible hearsay, in forming the basis of his opinion.
However, it does not allow an expert’s reliance on hearsay or other inadmissible evidence to be used as a conduit for placing unavailable experts or physicians’ statements before a jury. In other words, the expert witness must rely on his own expertise in reaching his opinion and may not simply repeat the opinions of others. See Miller v. State, 575 N.E.2d 272, 274-75 (Ind.1991) (physician could rely upon but not repeat what another physician told him about diagnosis of defendant’s girlfriend).
Opinions or diagnosis of doctors who are unavailable to testify and not subject to cross examination do not come in as business records under Rule of Evidence 803(6). Where a party seeks to admit medical or hospital records that contain opinions, the proponent of the records is required to establish the expertise of the opinion giver under Rule of Evidence 702. Cook v. Whitesell-Sherman, 796 N.E.2d 271, 278 (Ind. 2003); Wilkinson v. Swafford, 811 N.E.2d 374, 391 (Ind. Ct. App. 2004)(citing In re Matter of E.T. and B.T., 808 N.E.2d 639 (Ind. 2004)), abrogated on other grounds by Willis v. Westerfield, 839 N.E.2d 1179 (Ind. 2006); Walker v. Cuppett, 808 N.E.2d 85, 97-98 (Ind. Ct. App. 2004). If the proponent fails to satisfy this foundational requirement, then such records are inadmissible. See Also. Schloot v. Guinevere Real Estate Corp., 697 N.E.2d 1273 (Ind.App.1998), (held that medical opinions within the certified medical records were not admissible). Similarly, Rule of Evidence 703 permits experts to base their opinions on hearsay, but does not permit them to testify as to hearsay medical opinions.
Nor are they admissible as statements made for purposes of diagnosis or treatment under Rule of Evidence 803(4). That exception is limited to only statements made by patients, not doctors. Sibbing v. Cave, 922 N.E.2d 594, (Ind. 2010)(prohibited plaintiff from reciting hearsay testimony at trial about what doctor told her about her injuries and diagnosis).
Finally, if such opinions or diagnosis are included in your client’s medical history, such statements represent multiple levels of hearsay based upon conversations by the client with doctors or other healthcare providers who are not subject to cross-examination and whose qualifications to render an expert opinion have not yet been established. Each level of hearsay must separately satisfy the requirements of Evidence Rules 702, 802 and 901 (authenticity). See Rule of Evidence 805 which deals with multiple levels of hearsay. This rule states, “Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules.”
One caveat to note on cross-examination of the defense doctor. Rule 703 does allow for you to inquire on cross examination at to the basis. It provides “The expert may in any event be required to disclose the underlying facts or data on cross-examination.” However, be careful because you could open the door to inadmissible and damaging items being brought out on redirect.
Be ready for this issue and close the floodgates of misinformation through the use of timely objections or a motion in limine.
Looking Good and the Art of Cross-Examination
Cross-examination is the greatest legal engine ever invented for the discovery of truth. You can do anything with a bayonet except sit on it. A lawyer can do anything with cross-examination if he is skillful enough not to impale his own cause upon it. – John Henry Wigmore
There are a number strategies out there regarding cross-examination. One of the more advanced theories of cross-examination consists of the simple objective of “looking good.” This theory of cross-examination is touted by Terry MacCarthy in his book MacCarthy on Cross-Examination, American Bar Association, 2007. His book outlines a simple process which allows the cross-examiner to look good while exercising maximum control over the witness through the use of short declarative one fact statements which require the witness to answer “yes”, “no”, or “I don’t recall/know”. The essential strategy, begins by defining the area of questioning in the following way:
Q. I am going to ask you some questions about [the topic in question]. Understand?
Once the precise area of questioning has been defined, the questioning begins. Below is a short example of this form of questioning:
Q. I am going to ask you some questions about the car that drove past you that night. Understand?
A. Yes.
Q. It was a Ford?
A. Yes.
Q. Red color?
A. Yes.
Q. Two-doors?
A. Yes.
Q. Male driver?
A. Yes.
Terry MacCarthy demonstrates how this simple format confines the witness and allows you to control the course of examination. In addition, the use of the short one fact questions allows you to be the storyteller and prevents the witness from taking control of the examination. Even if you are not scoring any particular key points, this format of questioning will allow you to look good as an advocate and speak directly to the jury. He suggest that you deliver the questions to the jury and look to the members of the jury panel instead of focusing your attention on the witness. This allows you to build report and credibility with the jury the process of questioning the witness. Throughout the course of his book, MacCarthy covers various nuances of the basic system. However, the anatomy of the examination always follows the format outlined above. in this book, MacCarthy emphasizes the need to frequently define each new area of questioning through the basic setup question: I am going to ask you some questions about [the topic in question]. Understand? If the witness fails to cooperate answer the question, they will look bad. The attorney on cross examination, can simply come back to the short leading question and ask for example:
Q. Mr. Smith, I am asking you questions about the car that drove past you that night. Understand?
A. Yes.
Q. The car was red?
If the witness quarrels with the examiner, the witness looks bad while the questioner continues to look good because there is no excuse for failing to give a straight answer to such a short and direct question. Terry MacCarthy’s method of cross-examination is covered in a series of YouTube videos. The link to the videos is listed below:
Part 1: https://www.youtube.com/watch?v=QcOkG9-TpEo&index=15&list=FLpWQuA5b8JFENHxyeOk2mZg
Part 2: https://www.youtube.com/watch?v=f1kTgKZuQjY&index=14&list=FLpWQuA5b8JFENHxyeOk2mZg
Part 3: https://www.youtube.com/watch?v=XzzvvtJEtDo&index=13&list=FLpWQuA5b8JFENHxyeOk2mZg
Part 4: https://www.youtube.com/watch?v=BcTTakWYlbs&index=12&list=FLpWQuA5b8JFENHxyeOk2mZg
Part 5: https://www.youtube.com/watch?v=V3geSkXvS7g&index=11&list=FLpWQuA5b8JFENHxyeOk2mZg
Part 6: https://www.youtube.com/watch?v=LTWr03VIS2E&index=10&list=FLpWQuA5b8JFENHxyeOk2mZg
Part 7: https://www.youtube.com/watch?v=yuCF078wooo&index=9&list=FLpWQuA5b8JFENHxyeOk2mZg
The lectures by Mr. MacCarthy took place at Case Western University School of Law over the course of a week. As a federal public defender Mr. MacCarthy knows how important it is to look good since oftentimes as a criminal defense attorney you have little to work with in defending your client. If you are interested in purchasing the book, then click the title above and you will be redirected to Amazon where you can purchase the book for approximately $80. I trust you will find this method of cross examination both easy to employ and effective to use with all sorts of witnesses.
Cross-Examination of Experts: Where to Start.
Where do you start with your preparation to cross-examine an expert? The following is a list of areas to review:
1. The Expert’s Curriculum Vita: You should thoroughly review the expert’s c.v. Expert’s will exaggerate and even make up credentials. In a criminal case I was defending the State’s expert, an environmental specialist, claimed he had a B.S. in engineering and was a P.E. which is typically short for being a certified professional engineer. He had signed all of his reports as a P.E. which at the deposition he claimed was short for “plant engineer” apparently suspecting he was at risk. Surprisingly, he claimed that he had never intended that anyone believe he was a certified professional engineer as I move through over twenty separate reports where he used this designation. He admitted that to make such a representation would be a bold-face lie. I then concluded his deposition by looping back to the first exhibit I had him identify and authenticate as being true and accurate, his c.v. There buried about half-way through the c.v. in his own words was the assertion that he was a “certified professional engineer”. He end up admitting to a number of other fabrications as well, including his educational background and other professional certifications. These were all done so he could raise his profile and make more money. All criminal charges against my clients were dismissed shortly after this deposition.
2. Prior Testimony: Expert’s who testify have often times covered similar ground in other cases. Depositions are an excellent source of inconsistent positions and damaging concessions. You can also find areas of bias explored in other depositions. I have subpoenaed expert’s records which they claimed that they no longer retain and ended up using the expert’s prior testimony to establish that they could in fact obtain such information. Trial lawyers often maintain data banks for frequently used experts. Westlaw and Trial Smith also have data banks you can search for a fee. Don’t ignore these sources.
3. Prior Writings of the Expert: Such articles contain principles upon which you can anchor your cross exam because they are the expert’s own words. These are admissible under Rules of Evidence 613 (prior inconsistent statements and 803(18) (learned treatises).
4. The Expert’s Report: A careful analysis can uncover implicit assumptions and the basis of the expert’s opinions. Often times the best way to challenge an expert is to show the foundation of his opinion is resting on sand, not bedrock. The truism of computer science is equally applicable to expert witnesses, “Garbage in, garbage out”. Just remember to anchor the items which are “garbage” as important early in your examination before looping back and pulling the rug out from the expert.
5. Learned Treatises: You should consult the central authorities of your expert’s field as well as journal articles in his field. You should in particular focus on those items you know he will have to admit are authoritative such as journals of organizations he is a member or leading educational textbooks in the expert’s field. Don’t forget the requirements of Rule of Evidence 803(18) which require that someone establish that the writing is authoritative and the text of the treatise you want to use must be read into evidence while the expert is on the stand.
6. The Internet: The Internet is the great equalizer. You can find journal articles, licensing databases, training videos, literature, the expert’s website, test protocol, websites listing experts for hirer and more. I have used training videos to demonstrate law enforcement experts have failed to follow testing protocol for determining whether blood was present and have found You Tube videos regarding protocol for surgical procedures for use in questioning doctors. Google your expert’s name; you can find all sorts of interesting background information and leads. You can check Google Scholar for journal articles and case law from across the land to see if your expert has testified or written any articles he may not have listed.
7. Private Investigators: They can help you verify credentials and degrees as well as identify other lawsuits where the expert has testified or been sued. You might even turn up an impeachable offense.
8. Consulting Experts: They can assist you in spotting errors and mistakes in an expert’s analysis. They are also an excellent source for finding learned treatises and journal articles.
9. Other Attorneys: This probably is not the expert’s first rodeo. Check with other trial lawyers in your area who may have come across the same expert. Call lawyers identified in your search of case law or the list of past cases found in the mandatory disclosures required in federal court cases. They can provide useful tips or identify tendencies of the expert.
10. Know Your Case: You will in all likelihood have a better working knowledge of your case than the expert. Cross-reference your evidence, exhibits, documents and deposition testimony and be ready to pounce on any mistakes the expert makes in understanding the case. I have beat adverse experts more often than not by knowing the facts better than the them. This allows you show the jury they are not a trustworthy guide.
11. iPhone Apps: Yes, there is an app for that too. I have used accident reconstruction apps to test and see what a change in the input data would mean to the expert’s ultimate conclusions. I have also used well known apps such as Wolfram Alpha and Power One FE Calculator for similar purposes.
Good luck hunting. Remember nothing beats preparation.
The Silent Cross-Examination… When nothing is better.
Nothing is more thrilling than conducting a good cross-examination of an adverse witness. The attorney through a series of leading questions wrangles concessions and makes his own case through a line of short and concise rhetorical questions that lead to an undeniable conclusion in favor of one’s client. However, there are times when no cross-examination is the best course of action. Perhaps, the witness has done no harm to your case. Or, maybe the witness is quite dangerous and your opponent has missed opportunities to bring forth damaging facts. In fact, your opponent maybe lying in wait for you to unwittingly opened the door to evidence which could undo your whole case. Many a skilled trial attorney will intentionally set traps for their opponents by baiting them into a line of questioning for which their witness has a ready response. You may ask, why wouldn’t they simply bring it out on direct examination? Well, jurors have a tendency to pay greater attention on cross-examination than direct examination because of the inherent drama of seeing an attorney match wits with a hostile witness. The impact of evidence brought out on cross-examination far exceeds the power the same evidence has when elicited on direct examination. While it takes courage to forgo cross-examination altogether, this conservative strategy will often best serve a case. As Francis Wellman observes in his classic legal treatise “The Art of Cross Examination“:
“Nothing could be more absurd or a greater waste of time than to cross-examine a witness who has testified to no material fact against you. And yet, strange as it may seem, the courts are full of young lawyers and alas! not only young ones who seem to feel it their duty to cross-examine every witness who is sworn. They seem afraid that their clients or the jury will suspect them of ignorance or inability to conduct a trial. It not infrequently happens that such unnecessary examinations result in the development of new theories of the case for the other side; and a witness who might have been disposed of as harmless by mere silence, develops into a formidable obstacle in the case. “
There may also be occasions where the bias or inherent weakness of the witness’s testimony is so obvious that further examination can only offer an opportunity for the witness to escape his blunders or rehabilitate himself. Under such circumstances, it is far better for counsel to dramatically rise from his table stare down upon the witness as if to begin his dissection of his testimony and after a pregnant pause state “I see no need to ask any questions of this witness your Honor” and then sit down. The jury will assume counsel has mercifully spared the witness further torture and has saved the jury’s precious time for more productive matters.
As noted by Francis Wellman”[i]t cannot be too often repeated, therefore, that saying nothing will frequently accomplish more than hours of questioning. It is experience alone that can teach us which method to adopt.”
The Barrister's Toolbox 