Surviving on cross-exam: Tips for expert witnesses

BY GARY L. BIRNBAUM AND VAIL CLOAR

Understanding the cross-examiner’s objectives can help an expert witness prepare to take the stand. It is not difficult to identify foundational principles that, if properly understood and applied, allow you to “survive” cross-examination. Here are seven tips for forensic and valuation services accountants who serve as expert witnesses.

  Understand the expert’s role in the case. Juries place a good deal of faith in expert witnesses, and even judges are generally receptive to such testimony when the critical issues in a case are beyond the scope of their experience and understanding. But nobody wants another advocate. Making concessions where necessary looks more impartial than vehemently resisting every inquiry. On the other hand, people like educators/teachers. The appearance of an impartial educator with a professional manner can be invaluable.

  Prepare. Preparation is key to surviving even the most carefully crafted cross-examination. The cross-examiner will likely ask only questions to which he or she already knows the answer. Anticipating questions ahead of time and thinking through the answers goes a long way toward withstanding cross-examination.

  Do not underestimate the cross-examiner. A skilled trial lawyer’s review of an expert’s written work and prior testimony is an essential part of his or her preparation. Electronic databanks and public records requests make it easy to see what an expert has said in the past. Assume that the cross-examiner has, at least on the issues to be addressed at trial, developed an expertise equivalent to yours and knowledge of the relevant facts superior to yours.

  Control yourself. Take nothing personally. Suggestions of incompetence or sloth may be designed to anger you or to destroy your professional air. Remain courteous but firm. Similarly, be prepared to testify about your hourly rate and the cost of your work. Do not be embarrassed by, or defensive about, the level of compensation, particularly if you have successfully imparted to the jury on direct examination the full scope of your work and the time required to conduct the expert analysis properly.

  Do not try to “win” the case. A perfectly conceived cross-examination may result in the expert answering “yes” 20 or 30 consecutive times and then leaving the witness stand. While certain experts insist on occasionally adding a rejoinder—such as “Would you like me to explain?”—such a comment is not likely to advance your cause. The cross-examiner will decline and suggest that “your attorney” will have the opportunity to question you again, if appropriate, on redirect examination.

  Understand the role of the redirect and closing arguments. If the cross-examination goes poorly, a properly prepared attorney may be able to repair most of the damage on redirect. The redirect and a closing argument are available to triage any injuries.

  Choose your words wisely. Generally, you should not volunteer information or stray from the specific subject presented. Do not assist the questioner when he or she appears confused or uneducated—such ignorance is often feigned. Generally avoid absolutes (such as “always” and “never”) and do not be reluctant to say “I don’t know,” “I don’t recall,” or, when appropriate, “I did not analyze/investigate/explore/address that matter as it was outside the scope of my assignment.”

Editor’s note: This checklist is adapted from an edited excerpt of materials from the “Surviving Cross-Examination” presentation at the 2013 AICPA Forensic & Valuation Services Conference. Also see the article “Seven Tips for Surviving Cross-Examination,” FVS News, August 6, 2014, available at tinyurl.com/k6v3lm3.

By Gary L. Birnbaum ( gbirnbaum@dickinsonwright.com ), a senior litigator at Dickinson Wright PLLC in Phoenix, and Vail Cloar ( vcloar@asu.edu ), a law clerk with the Arizona Supreme Court.

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