by: Dr. Ken Broda Bahm
Your expert witness is on the stand as cross begins. Where he previously was clear, confident, and informative with you in direct, he is now simply saying “yes,” and “that’s right” to a series of statements made by opposing counsel. “So you agree that my company completed years of testing on this product?” “Yes,” he answers (secure in his prior testimony that they were the wrong tests). “And you agree that every relevant federal agency has approved this product?” “That’s right,” he says, (recalling that he has already testified that a reasonable company needs more than agency approval). Eighteen different softball versions of “aren’t we doing the right thing?” come next, and your agreeable expert is just following along. During a break, you ask him, “What is going on?” and he replies, “Oh that? She isn’t getting anything from me with those questions, we don’t contest any of those facts.” True enough, but as you well know, the jury isn’t looking at just the legal issues, and doesn’t have a score-card of admitted and contested facts. What they do have is a fragile and ever-shifting sense of where the balance of power lies in the case. Though no damaging admissions have escaped your expert’s lips, there are two big problems with the scenario unfolding in cross:
One, jurors are now simply listening to opposing counsel speak; and two, whether it is strategic or not, your opponent appears to be getting what she wants.
The solution is for your expert to fight back, to make points at your opponent’s expense by returning to his central messages whenever those messages can serve as arguably relevant responses to opposing counsel’s questions. Your witness may intuitively believe that the direct was the time to get the message out, and that cross is just a time to play it safe, say little, run the clock out, and try not to get caught in any blunders. For some very weak witnesses, that could be the best approach. But for a smart witness – especially, but not necessarily an expert witness — that approach couldn’t be more wrong. Any courtroom observer has noted how a jury seems to perk up and sit forward once direct ends and cross begins. That is natural: It is the jury’s chance to see the direct conflict between the parties played out in front of them. It is safe to say that the jury is almost always paying more attention in cross, and for that reason, any point made in their cross is worth ten points made in your direct.
In addition to making sure your witness clearly understands this perspective, you should ensure that the smart witness is also practiced in three basic rules in fighting back:
-
Know your key messages. I’m not talking about the entire direct outline, I’m talking about a short list of, at most, six or seven basic ideas that you hope to leave with the jurors. Whenever there is a reasonable opportunity to loop back to one of those messages, your witness should take it.
-
Consider the inference, not just the question. We are used to telling witnesses the questions that they are likely to hear from opposing counsel. But it is probably more important to talk about the target inferences about your witness that the opponent wants to leave with the jurors. By considering not just “what are you asking?” but also “and what are you trying to get from that?” your witness can seize more opportunities to answer not just the literal question being asked, but the broader point as well.
-
Pick your moments. Your witness needs to know that they can’t play mental chess with opposing counsel and chain out the possible implications of every answer. They should not guess at the implications of a question that seems to lead nowhere, and they can’t risk appearing quarrelsome by arguing over even the most innocuous admission. Make sure your witness knows: “you can’t try to go after every foul ball… but when you see a good pitch, swing!”
Like all witness skills, the critical skill in fighting back in cross should be taught through realistic mock testimony. It is by doing that the witness will get it and not just by hearing. Your feedback in that process (for example, to ensure that the witness doesn’t take the advice too far by becoming combative) is essential. With the right approach, however, your witness can make sure that the messages of direct continue to resound in cross. To take the example of the expert, it should be more like this:
Q: “So you agree that my company completed years of testing on this product?”
A: “Years of some testing, but not one test that looked at the critical issue.”
Q: “And you agree that every relevant federal agency has approved this product?”
A: “Sure, and that kind of approval is like a driver’s license – the state says you’ve gotta have one, but having one isn’t a guarantee against causing injury when you drive.”
“Maybe,” your opponent thinks, “it would be a good idea to stop asking questions of this witness.”