Evidence Litigation Strategy Trial Strategy

How to Control an Expert Witness

As with all witnesses, you must be able to control an expert witness during cross-examination. But many experts with experience in testifying treat cross-examiners like presidential candidates deal with the press: they ignore the question asked and answer the question they prefer. Here’s how to keep experts under your control.

If you’ve got an evasive expert, start by getting the court on your side. Make sure the court sees what’s going on by, if necessary, repeating the question until the witness’s evasion is obvious, then by asking the court to direct the witness to answer.

Another way to call attention to the witness’s evasion is asking:

Q. Did you understand my last question?

Q. Are you willing to answer it?

Remember that the objection that an answer is nonresponsive is designed for the examiner when facing an evasive witness. And Evidence Code §766 requires a trial judge to strike a nonresponsive answer if a party so moves.

If you know in advance that a witness will be difficult to pin down, like an expert who was slippery at deposition, consider making a “bargain” with the expert at the outset of cross-examination:

Q. Ms. Jones, you have been hired by my opponents to help them in their case, haven’t you?

A. I have been hired to render my expert opinion.

Q. In this connection, you have spent over 15 hours working with my opponent, haven’t you?

A. That’s correct.

Q. And you have been paid over $7000?

A. Approximately.

Q. I haven’t had the chance to talk to you informally about the facts of this case, have I?

A. No, you haven’t.

Q. I want to ask some focused questions, and I would like to get your agreement to a procedure that I hope will make certain things clear to the jury. After I ask you a question, I would like you to answer “yes,” “no,” or “I can’t answer that question yes or no.” Do you understand what I am asking?

A. Yes I do.

Q. Can you keep that bargain with me?

A. Yes, I think I can.

If the trial judge won’t let you keep an expert on such a short leash, you should at least be able to get agreement (or direction from the court) that the witness will first answer “yes” or “no,” and then give any explanation necessary to clarify the answer.

For more advice on how to examine an expert witness, turn to CEB’s Effective Direct and Cross-Examination, chap 7. Also check out Jefferson’s California Evidence Benchbook, chap 3 and California Expert Witness Guide, chap 15.

Other CEBblog™ posts you may find useful:

© The Regents of the University of California, 2018. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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