IMPROVING CROSS-EXAMINATION OF EXPERT WITNESSES

Published in Los Angeles Lawyer, April 2005

In many respects, the cross-examination of an expert witness is the same as for other witnesses. Some basics include: Be brief…Do not quarrel with the witness…Never ask a question to which you do not already know the answer…Avoid one question too many…and so on. However, there are some important differences.

Preparation

Preparation is even more important when dealing with an expert witness. Your research should include:

• Has this witness written or testified previously with inconsistent conclusions to those being taken in your case?

• Does the expert always testify for the same side? An impartial expert can consistently apply his trade on behalf of both plaintiffs and defendants.

Attacking the opposing expert’s theory or conclusions is much more difficult than attacking their qualifications. To prepare for the substance of the opinions, you should be schooled by your (equally competent) expert. Your expert can educate you as to weaknesses and flaws in the opposing position, as well as the jargon necessary to understand what is being said. Your expert may also know information about your opposing expert that you would otherwise have difficulty learning.

Your cross-examination plan should emphasize quality over quantity. The more qualified and/or experienced the expert, the less likely that you will gain much from a more lengthy cross. The reason is that the expert has years of training and experience from which to draw in answering your questions. A wide-ranging cross is more likely to give the witness a new chance to demonstrate his expertise or explain his views. Particularly with complex subjects, focus on your opponent’s big problems that you know you can demonstrate.

What Questions to Ask

Your deposition should have uncovered the assumptions upon which your opposing expert relies. These assumptions often control the result the expert reaches, and will likely be the centerpiece of your examination. Your ultimate goal is to provide the jurors with the basis to argue against the expert’s conclusions by showing that they are based on assumptions that the jury independently rejects. The jury will generally find it much easier to critique the assumptions than to challenge the expert’s science or techniques.

All cross-examination is better when done with short and simple sentences. Add only one new fact or point with each question. This makes it difficult for the witness to disagree without appearing obstinate. Short questions provide less room for the witness to squirm away from your control, or provide explanations that you would rather not hear.

The use of questions that do not contain extra details is particularly important when dealing with the complex subjects that experts address. Experts are usually careful, and understand the importance of precision. Avoid questions containing absolute words (such as “always” or “never”), or unnecessary adjectives (such as “clearly” or “rapidly”). Otherwise, the expert may take advantage of your question’s exceptions or subtleties to avoid answering in the desired way.

Most questions should be leading, meaning the question can be answered with a “yes” or a “no”. This has the practical effect of having the attorney serve as a witness, with the real witness ratifying the attorney’s testimony. However, as long as you have a good deposition transcript to support you, some questions are better left open for the expert to complete. Some examples, all of which ask for specific objective data, include:

• How much money did you make last year testifying for other plaintiffs?
• Of the thousands of medical journals published around the world, how many of them have asked you to publish the opinions you are expressing in this case?
• When is the last time you treated a real patient?

Lawyers often try to impeach an expert with the fact that he has been paid for his work. This backfires as often as it works. For example, if the expert has put significant time and cost into the matter, does this indicate thoroughness rather than bias? If the expert has a high hourly rate, does this mean that she is a liar, or rather that she is eminently qualified and in high demand? The impeachment from fee-related questions is minor compared to the witness’s confidence and preparation on other matters and the effectiveness of the rest of your cross-examination.

Some experts attempt to demonstrate their superiority by using technical jargon. When dealing with a pompous expert, you must know the expert’s lingo. Get the expert to agree with your alternative explanation that uses everyday language. Doing this will demonstrate the expert’s arrogance, and will raise your credibility with the jury.

The Order of Questions

You should generally begin and end your cross-examination with your strongest points. Otherwise, use the following sequence:

Practically every opposing expert will have opinions that support your case. This corroborating testimony will have a stronger impact than the same testimony from your side. Therefore, start your examination with the areas or themes that will allow you to turn the opposing expert into your witness. At the beginning, your opposing expert will be less hostile.

Next, dilute the opposing expert’s opinions by seeking agreement regarding possible alternative explanations that favor your theories. A jury will often give credit to a mere possibility, even if this possibility may not be probable.

After the corroborative portion of the cross-examination, ask the more destructive and critical questions. However, do not be aggressive, as this might cause the jury to be sympathetic towards the expert. You should attack an expert only when you believe the jury will see the witness as being unfair, arrogant, or disrespectful of the truth.  Even then, you must never cross the lines between tough and mean, or confident and arrogant.

Experts often make a huge difference in the trial. Additional attention to the expert portion of your case is usually worth the effort.

David Nolte is a principal at Fulcrum Financial Inquiry LLP, with 30 years of experience performing forensic accounting, auditing, business appraisals, and related financial consulting. He regularly serves as an expert witness.

David Nolte is a principal at Fulcrum Financial Inquiry LLP with 30 years of experience performing forensic accounting, auditing, business appraisals, and related financial consulting. He regularly serves as an expert witness. 

Posted in Damage Analysis

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Witness Cross-Examination Plan: THE SKILL	It is your plan as to how to cross-examine an opposing party or a witness. The bases for challenging the witness's credibility will be obvious from the material in the file and the library.
Witness Cross-Examination Plan: WITNESS CREDIBILITY	The bases for challenging the witness's credibility will be obvious from the material in the file and the library.

Jury instructions

From Wikipedia, the free encyclopedia

The examples and perspective in this article may not represent a worldwide view of the subject. Please improve this article and discuss the issue on the talk page. (December 2010)

Jury instructions are the set of legal rules that jurors ought follow when deciding a case. Jury instructions are given to the jury by the jury instructor, who usually reads them aloud to the jury. They are often the subject of discussion of the case, how they will decide who is guilty, and are given by the judge in order to make sure their interests are represented and nothing prejudicial is said.

Contents   [hide]  1 United States 1.1 Jury nullification instructions 2 References 3 External links

United States[edit]

Under the American judicial system, juries are often the trier of fact when they serve in a trial. In other words, it is their job to sort through disputed accounts presented in evidence. The judge decides questions of law, meaning he or she decides how the law applies to a given set of facts. The jury instructions provide something of a flow chart on what verdict jurors should deliver based on what they determine to be true. Put another way, "If you believe A (set of facts), you must find X (verdict). If you believe B (set of facts), you must find Y (verdict)." Jury instructions can also serve an important role in guiding the jury how to consider certain evidence.^[1]

Forty-eight states (Texas and West Virginia are the exceptions) have a model set of instructions, usually called "pattern jury instructions", which provide the framework for the charge to the jury; sometimes, only names and circumstances have to be filled in for a particular case. Often they are much more complex, although certain elements frequently recur. For instance, if a criminal defendant chooses not to testify, the jury will be often be instructed not to draw any negative conclusions from that decision. Many jurisdictions are now instructing jurors not to communicate about the case through social networking services like Facebook and Twitter.^[2]

Several studies have discovered that subjects who received no jury instructions comprehended the law better than subjects who received pattern instructions. Jurors retain low comprehension of the most fundamental aspects of their roles. For instance, scholarly studies and anecdotal evidence suggest that jurors conflate reasonable doubt with the civil standard of preponderance of the evidence.^[3]

In one study, citizens willing to impose the death penalty were presented in 2 experiments with 4 sets of instructions (i.e., baseline instructions, instructions used at trial, instructions revised according to Eighth Amendment to the U.S. Constitution holdings, and model instructions written in nontechnical language). Results demonstrated high confusion with the trial instructions, little improvement with revised instructions, significant but case-specific improvements with model instructions, and a strong relationship between miscomprehension and willingness to impose death.^[4]

In California, jury instructions were simplified to make them easier for jurors to understand. The courts moved cautiously because, although verdicts are rarely overturned due to jury instructions in civil court, this is not the case in criminal court. For example, the old instructions on burden of proof in civil cases read:^[5]

Preponderance of the evidence means evidence that has more convincing force than that opposed to it. If the evidence is so evenly balanced that you are unable to say that the evidence on either side of an issue preponderates, your finding on that issue must be against the party who had the burden of proving it.

The new instructions read:

When I tell you that a party must prove something, I mean that the party must persuade you, by the evidence presented in court, that what he or she is trying to prove is more likely to be true than not true. This is sometimes referred to as 'the burden of proof.'

Jury nullification instructions[edit]

In one study, results gathered from 144 six-person juries indicated that when juries are in receipt of jury nullification information from the judge or defense attorney they are more likely to acquit a sympathetic defendant and judge a dangerous defendant more harshly than when such information is not present or when challenges are made to nullification arguments.^[6] In another study, three nullification instructions varying in explicitness as to nullification were combined with three criminal cases to yield a 3×3 factorial design. Forty-five six-person juries (270 subjects) were randomly assigned to the nine experimental groups. The results showed that juries given explicit nullification instructions were more likely to vote guilty in a drunk driving case, but less likely to do so in a euthanasia case. The third case, which dealt with murder, did not show any differences due to instructions.^[7]

It has been argued that by effectively and persistently offering juries instructions that cannot be understood, judges regularly nullify the law.^[8]

Instructions permitting jury nullification has sometimes been criticized as promoting chaos, in that it "conveys an implied approval that runs the risk of degrading the legal structure requisite for true freedom, for an ordered liberty that protects against anarchy as well as tyranny." A rebuttal to this is that a jury instruction about jury nullification "would transform the judicial process by providing a more rational basis for jury deliberation and decision making. In particular, it would allow jury deliberation to be an open process in which extrajudicial biases are aired and confronted. Further, those communities whose members are increasingly estranged from the criminal justice system's decision-making process will benefit indirectly from greater participation and, in turn, from power over the kinds of cases prosecuted. In sum, contrary to the argument that a nullification charge is an invitation to anarchy, such a charge could help to control the anarchy that has already gripped much of the system."^[9]

References[edit]

1. ^ Overview - Federal Jury Instructions & Federal Evidence
2. ^ Ensuring An Impartial Jury In The Age Of Social Media, Duke Law and Technology Review (2012), http://dukedltr.files.wordpress.com/2012/03/stevefinal_31.pdf
3. ^ John P. Cronan (2002), Is Any of This Making Sense? Reflecting on Guilty Pleas to Aid Criminal Juror Comprehension 39, American Criminal Law Review
4. ^ Wiener, Richard L.; Pritchard, Christine C.; Weston, Minda (August 1995), "Comprehensibility of approved jury instructions in capital murder cases", Journal of Applied Psychology (Journal of Applied Psychology) 80 (4): 455–467, doi:10.1037/0021-9010.80.4.455
5. ^ Spelling It Out in Plain English
6. ^ Irwin A. Horowitz (December, 1988), The impact of judicial instructions, arguments, and challenges on jury decision making 12 (4), Law and Human Behavior, ISSN 0147-7307
7. ^ Irwin A. Horowitz (March, 1985), The effect of jury nullification instruction on verdicts and jury functioning in criminal trials 9 (1), Law and Human Behavior, ISSN 0147-7307
8. ^ Saks, Michael J. (1992-1993), Judicial Nullification 68, Ind. L. J., p. 1281
9. ^ David N. Dorfman (1995), Fictions, Fault, and Forgiveness: Jury Nullification in a New Context

External links[edit]

• Federal Jury Instruction Resource Page Collecting model or pattern federal civil and criminal jury instructions for trial courts by jurisdiction (where available) and subject matter.
• Jury Instructions in Insurance-Coverage and Insurance Bad-Faith Cases^{[dead link]}
• Sample California Civil Jury Instructions
• Criminal Pattern Jury Instructions, 10th Circuit U.S. Court of Appeals.

[hide] v   t   e Jury-related articles Primary articles Jury trial   Grand jury (Indictment)   Jury instructions   Specific finding   Deliberation   Hung jury   Jury nullification   Jury tampering   Jury research   Jury stress Jury selection Change of venue   Death-qualified jury   All-white jury   Peremptory challenge   Strike for cause   Scientific jury selection   Struck jury Specific jurisdictions Canada   Eng

Civil Plain English Comparison

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Civil Jury Instructions Resource Center

Plain English Examples

BAJI 2.00 reads:

Circumstantial evidence is evidence that, if found to be true, proves a fact from which an inference of the existence of another fact may be drawn. A factual inference is a deduction that may logically and reasonably be drawn from one or more facts established by the evidence.

The comparable Judicial Council instruction (number 202) reads:

Some evidence proves a fact directly, such as testimony of a witness who saw a jet plane flying across the sky. Some evidence proves a fact indirectly, such as testimony of a witness who saw only the white trail that jet planes often leave. This indirect evidence is sometimes referred to as “circumstantial evidence.” In either instance, the witness’s testimony is evidence that a jet plane flew across the sky.

BAJI 2.21 reads:

Failure of recollection is common. Innocent misrecollection is not uncommon.

The latter sentence is stated in triple negatives. The comparable Judicial Council instruction (number 107) reads:

People often forget things or make mistakes in what they remember.

This is an example of the use of basic English language principles to make instructions simpler.

BAJI 2.60 reads:

“Preponderance of the evidence” means evidence that has more convincing force than that opposed to it. If the evidence is so evenly balanced that you are unable to say that the evidence on either side of an issue preponderates, your finding on that issue must be against the party who had the burden of proving it.

These are familiar words to lawyers. But the task force had to ask whether the average juror ever used the noun “preponderance” and, more pointedly, the verb “preponderates.” The comparable Judicial Council instruction (number 200) reads:

A party must persuade you, by the evidence presented in court, that what he or she is required to prove is more likely to be true than not true. This is referred to as "the burden of proof."

BAJI 3.36 reads:

The amount of caution required of a person whose physical faculties are impaired is the care which a person of ordinary prudence with similarly impaired faculties would use under circumstances similar to those shown by the evidence.

Most judges and attorneys understand that sentence. But the phrase “person of ordinary prudence” is not normally in the vocabulary of a tenth grader. Nor does the same tenth grader speak of people whose “physical faculties are impaired.” The comparable Judicial Council instruction (number 403) reads:

A person with a physical disability is required to use the amount of care that a reasonably careful person who has the same physical disability would use in the same situation.

BAJI 6.00.2 reads:

A psychotherapist has no duty to warn third persons of a patient’s threatened violent behavior, nor any duty to predict such behavior or to protect third persons from such behavior, unless the patient has communicated to the psychotherapist a serious threat of physical violence against [a] reasonably identifiable potential victim[s]. If a patient has communicated such a threat to a psychotherapist, the psychotherapist then has a duty to warn and to protect the reasonably identifiable potential victim[s]. If you find a psychotherapist had this duty, it is satisfied and there is no liability if the psychotherapist made reasonable efforts to communicate the threat to the victim or victims and to a law enforcement agency.

The comparable Judicial Council instruction (number 503 A) breaks the cause of action into clear elements and identifies the parties by name:

[Name of plaintiff] claims that [name of defendant]’s failure to protect failure to protect [name of plaintiff/decedent] was a substantial factor in causing [injury to [name of plaintiff]/the death of [name of decedent]]. To establish this claim, [name of plaintiff] must prove all of the following: That [name of defendant] was a psychotherapist; That [name of patient] was [name of defendant]’s patient; That [name of patient] communicated to [name of defendant] a serious threat of physical violence; That [name of plaintiff/decedent] was a reasonably identifiable victim of [name of patient]’s threat; That [name of patient] [injured [name of plaintiff]/killed [name of decedent]]; That [name of defendant] failed to make reasonable efforts to protect [name of plaintiff/decedent]; and That [name of defendant]'s failure was a substantial factor in causing [[name of plaintiff ’s injury/the death of [name of decedent]].