EXPERT WITNESSES:

Preparing and Challenging Expert Witnesses at Trial:

Preparing and Conducting the Cross-Examination1

Law Society of Manitoba

By: Richard H. Shekter BA LL.B. LL.M

(May 3, 2012)
Winnipeg Manitoba

© Copyright 2012 by Richard H. Shekter

All rights reserved

INTRODUCTION

Expert opinion evidence lies at the heart of many criminal or civil cases. Because of its
significance, whether related to issues of liability, damages, guilt or innocence, an effective cross-
examination of the opposing expert witness is often essential if a party is to have any hope of
being successful in a given case.

The problem, however, is that cross-examining an expert witness is a lot like trying to sneak up
on a very large man who is standing on a chair, brandishing a baseball bat! If approached
incorrectly, it can hurt real bad!2 It is the ultimate test of brain over brawn: your brain, his
brawn.

It may also be said that when dealing with opposing expert witnesses, you can be absolutely
assured of only two things:

1) They will always know more than you do about their area of expertise;
and
2) They will not, in the middle of your withering cross-examination, break
down and freely admit that you’re right and they’re wrong. Real life
simply does not work that way.

.It is also what makes these cross-examinations so exciting and challenging for all of us
as trial lawyers. Moreover, the reality is that with pain-staking research, meticulous
preparation, a comprehensive understanding of the subject-matter, and an
encyclopaedic knowledge of the facts of your case, you can almost create for yourself
a level playing field in the courtroom. Once more, and this is significantly under-
1
This paper is adapted from a paper authored by the writer for the Law Society of Upper Canada
2
The author is aware of the grammatical error, but has taken the liberty throughout this paper of utilizing liberal
doses of poetic license for effect!
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appreciated, you also have the distinct advantage of knowing precisely where your
cross-examination is going, while the witness does not. To use a well-worn
expression: the harder you work the luckier you get!

This paper is, by definition, an overview only. It does not purport to be an exhaustive
treatise on the subject of expert-witness cross-examinations. That would require a
book or two. Secondly, some of the subjects dealt with in papers accompanying this
presentation, as, for example, junk science, are avoided altogether. What this paper
does try to do, is to provide you with a general framework within which to conduct
both your trial preparation for, and the conduct of, the cross-examination of your
opponent’s expert witness. Hopefully this will make the task of dealing with these
difficult witnesses easier and more effective.

The Overview:

I like to analogise the opinion of an expert witness to an expensive flower pot on a four-legged
table. If you can chip away at one or two of the legs, the flower pot is certain to slide off and
shatter. What are those legs? 1) good credentials, 2) an adequate foundation 3) a fair opinion,
and 4) sustainable science. Let’s look then at each of these in turn.

The First Leg: Good Credentials3

The most frequently ignored area of cross-examination of an expert witness is the challenge to
the witness’ professional credentials. Ask yourself a basic question: is the information contained
in the Curriculum Vitae (C.V.) accurate? In every case involving expert evidence, I request a
comprehensive C.V. from every such witness that the opposition intends to call. You will be
amazed to find that from time to time, these documents are either partially, or significantly,
inaccurate. Remember, if you can unsettle an expert at the outset of a cross-examination by
successfully challenging the integrity of his/her resume, the expert’s confidence in relation to the
really important issues will be substantially undermined – not to mention his/her credibility with
the judge or jury.

The question, then, is how to check credentials out. Quite simply, I use three primary sources
when dealing with medical witnesses: 1) educational institutions; 2) the regulatory bodies, if any;
and 3) computer data-base searches.

1) The Educational/Professional Institutions and Associations

If the witness’ evidence is significant enough to warrant the effort, and if academic credentials
are relevant to the particular area of expertise involved, I do not hesitate to write or telephone the
universities and/or academic institutions and ask for verification of the dates of the attendance of,
3
See for example, generally, “The Expert’s Curriculum Vitae, To Cross Examine or Not to Cross Examine”, by J.B
Donnelly, Ontario Trial Lawyers Association Spring Conference, 1998, Winning Strategies for Litigating Traumatic
Brain Injury Claims, Volume 2, and articles cited therein

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and the degrees granted to, the witness. In some cases I have even had my staff telephone the
post-doctoral clinical supervisors of an opposing medical expert, for example, to see whether the
subject-matter of their post-doctoral work had any relevance to the issues upon which testimony
is being presented. I also check out the institutional affiliations and association memberships
described in the C.V. in the same way.

In 95% of the cases your investigation will only serve to establish beyond a shadow of a doubt
that the expert is, and did, precisely what the C.V. says. . Nevertheless, it is absolutely worth the
exercise. In that 5% of cases where there is an overstatement or misstatement concerning the
witness’ academic credentials or professional affiliations, the effect before a judge or jury can be
absolutely devastating to the witness.

2) The Regulatory Bodies

Many expert witnesses are members of professions regulated by statute. For example in Ontario,
25 specific health professions are governed under the umbrella of the Regulated Health
Professions Act, 1991, with each profession having its own College created by a specific piece of
enabling legislation. These Colleges all require an enormous amount of personal, professional,
and scholastic information to be filed at the time of the witness’ initial application for
registration, and at the time of annual reviews thereafter. These documents can on occasion
provide counsel with a fertile source of information that may (or may not) be significant in a
given case. Many other professions are governed in a similar way (eg. Architects, Engineers,
Chartered Accountants, etc.)

By way of example, if you are required to cross-examine a psychologist, it is helpful to know

that even though the College of Psychologists of Ontario does not have specialty designations
authorized by regulation (as does the College of Physicians and Surgeons, for example), it still
requires members to specify annually the areas of psychology in which they practice, and the
percentages attributable to each.

By way of example, in one case, it was discovered that a defence neuropsychologist, who was
testifying about the clinical ramifications of the plaintiff’s neuropsychological deficits, trained
exclusively in the field of experimental psychology and, until the final year of her post-doctoral
work, had seen a total of three patients in connection with an experiment completely unrelated to
the particular issue involved in your case.

In the health field you may find, however, that most of the regulatory colleges will not, in most
cases, simply hand over the documentary evidence to you upon request, nor will they respond to
a subpoena. Relying upon section 36 of the Regulated Health Professions Act, 1991, many take
the position that they are statutorily prohibited from doing so. Accordingly, you either have to
ask for production of it from opposing counsel or, alternatively, subpoena the documents directly
from the opposing expert witness in advance of his/her taking the stand.

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There are, however, some documents that are part of a College’s public record, including the
findings and dispositions of disciplinary proceedings that result in a conviction of a member,
summaries of which are generally required to be published in the interim or annual College
publications. These documents are also available upon request and should be reviewed.
An example of an effective use of a disciplinary finding can be found in the case of Rooney v.
Hnatiuk,4 (one of the more devastating cross-examinations of a medical witness on his credentials
in many years). During the qualification portion of his examination, Plaintiff’s counsel, Brian
Donnelly, cross-examined the witness on the following passage taken from the reasons for
sentence of the Discipline Committee of the College of Physicians and Surgeons of Ontario
following the doctor’s conviction on a charge of professional misconduct:

The [Discipline] Committee was alarmed that Dr. L . . , as a teacher

of the majority of newly qualifying orthopaedic surgeons in
Ontario, and one who has substantial influence on the even more
malleable minds of the undergraduate students, appeared to have
failed to understand the fundamentals of the Health Disciplines Act,
the functions of the College . . . the Canadian Medical Protective
Association and even his section of the Ontario Medical
Association.

Needless to say, the jury was not pleased!

3) Computer Searches

Regardless of what you may think of his haircut, there is also no question that Bill Gates has
done us all a great service. Doing a name-specific search using Quicklaw, for example, will
provide you with a copy of virtually every judicial decision where the expert has been identified
by name in the course of reasons for judgment. In addition, the Criminal Lawyers Association
(CLA) and the Ontario Trial Lawyers Association (OTLA) have each created expert witness
databases accessible to members only. To be able to access detailed information about expert
witnesses who regularly find themselves on the opposing side of a case, is definitely worth the
price of these associations’ admission fees. OTLA and the CLA also have set up ‘chat lines’ to
enable members to exchange information about their favourite expert witnesses. These particular
sources of information are truly invaluable.

Unless you think that this issue is of academic interest only, in Roberts v. Morana5, a personal
injury case involving a brain-damaged young woman, a Quicklaw search of the name of the
defendants’ future care expert turned up twelve Ontario General Division judgments where the
witness’testimony had been considered and reviewed. One of those cases mentioned his
credentials in passing which, to counsel’s delight, was inconsistent with both the C.V. filed as an

4
Ontario Court General Division, unreported, December 1997. A transcription of the cross-examination of Dr. L. by
can be found in the article by Brian Donnelly, supra, fn 2
5
(1997), 34 O.R. (3d) 647 (O.C.G.D)

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exhibit at the outset of his examination-in-chief, and the witness’s testimony on the stand while
being qualified in chief.

While the witness testified that he had obtained a Bachelor of Social Work, as reflected in his
C.V., the computer searched confirmed that he had never, in fact, completed the degree. This is a
portion of the cross-examination of this witness:

Counsel: And at the end of the spring of 1978 did you get a degree sir?

Witness: Not on paper no, sir.

Counsel: Well, it’s not a question of on paper.

Witness: No, I did not receive my degree.

Counsel: But I’m a little confused because . . . my friend asked you and you said, “I have
a degree in social; work.” Do you or do you not have a degree?

Witness: Not a said degree, no sir. . .

Counsel: You do not have a degree in social work do you from any university anywhere
in this province?
Witness: Not a combined degree.

Counsel: You do not have a degree from any university in the province of Ontario?

The Court: And your C.V., B.S.W., is that purporting to show your degree?

Witness: No sir.

Defence Counsel: The witness was trying to explain and my friend stopped him from
going on.
The Court: Let Mr. Shekter go.

Counsel: Sir, you . . . haven’t been in school since ’78?

Witness: No Sir.

Counsel: You don’t have a degree in psychology do you?

Witness: No sir.

Counsel: You don’t have a degree in sociology?

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Witness: No sir.

Counsel: You don’t have a degree in social work?

Witness: No sir.

Counsel: But, forgive me, when I’m reading a C.V. and it says “B.S.W.” that tells me that
you’re a Bachelor of Social Work. You would agree with me that that would be what a normal
person reading that document would interpret?

Witness: I agree. . .

Counsel: In fact sir, this isn’t the first time you have been taken to task about the absence
of a university degree?

Witness: No sir.

The witness was so unsettled by the discovery of his inaccurate C.V. during the qualifying
portion of his cross-examination that, for the balance of his testimony, his evidence under cross-
examination was more favourable to the plaintiff’s case on many of the same issues than the
evidence of the plaintiff’s own expert!

Is the C.V. Relevant to the Case

Before leaving the subject of credentials, it is worth remembering that the current economic
climate may have an impact on the quality of the ‘expert’ being called by the opposition. Again,
using medical expert evidence as an illustration, in the health care industry, Ontario’s physicians
are having a rough time. There is a legislative ban on so-called ‘extra-billing’, and doctors’
annual fees are now capped at less than what most junior partners in mid-sized law firms bill in
the course of a year. As a result, doctors are prepared to become increasingly active in the courts
as expert witnesses and, from time to time, will extend their testimony into areas beyond those
relevant to their fields of expertise.

In Calvert v. Calvert6, the petitioning wife sought a divorce and an equalization of net
family property. The husband’s defence, interestingly, was somewhat novel: he claimed that his
wife, who was now suffering from Alzheimer’s, lacked the mental capacity to divorce her
husband. In support, the husband retained a psychiatrist and a neurologist, both of whom gave
evidence that Mrs. Calvert lacked the capacity to separate and divorce.

Following an extremely effective cross-examination by Phil Epstein Q.C., counsel for the
Petitioner-wife, in the course of rejecting the evidence of the defence neurologist, Benotto J. had
this to say:

6
(1997), 34 O.R. (3d) 647 (O.C.G.D)

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Dr. F. . . also gave expert evidence that Mrs. Calvert lacked the capacity to separate and
divorce. . . He has never opined about the capacity to separate and divorce. He had
no professional experience with any separating or divorcing people. This was
important because, in my view, Dr. F. . . created a test for Mrs. Calvert that most people
could never meet. If petitioners were required to meet this test, the divorce courts would
be empty. . .(emphasis added)

In short, whether or not you have the forensic capacity to land a knock out punch in relation to
the substantive portion of an opposing expert’s testimony, if you can keep him/her off the stand
from the outset, through the attack on credentials, do not hesitate to do so.

The Second Leg: The Foundation

An expert opinion is only as good as the foundation upon which it is based. Undermine
the foundation and the report becomes only so much wallpaper! Two questions must
be asked here: 1) did the expert have all the relevant and material background
information necessary to provide the opinion being sought? and, 2) was the
examination, evaluation or assessment undertaken adequate to the task?

(a) Adequacy Of Background Data

To use a well-worn expression, garbage in, garbage out. If the opposing expert has not been
provided with the entire documentary record (assuming one exists) and all available anecdotal
information concerning the subject-matter of his/her testimony, the integrity of the opinions
based thereupon can be fundamentally undermined. Not infrequently, and particularly in
connection with opinions on personal injury damages, a defendant’s counsel may not have
provided their witnesses with a complete and comprehensive documents brief at the time of the
preparation of the defence expert’s report. The same is obviously true in many other kinds of
cases. Remember, no witness of integrity, nor for that matter, any witness who does not wish to
look ridiculous in court, will every deny under cross-examination the proposition that if the facts
upon which the opinion is based change, so too must the opinion.

Whether dealing with issues of liability or damages, guilt or innocence, be sure to request copies
and/or particulars of all the specific documentation and anecdotal information provided to the
expert witness at the time of the preparation of his/her opinion. A detailed analysis of those
source documents may reveal the omission of a significant document at the time that the report
was prepared. Remember, if an opinion was prepared based on incomplete information, even if
the expert subsequently discovers the omission and rectifies it in advance of trial, the integrity of
the expert’s opinion, and possibly his/her evidence as a whole, even if the opinion ultimately
remains unchanged, is still open to serious question.

Again, using the personal injury lawsuit by way of illustration, when dealing with the defence
medical expert on the issue of damages in any personal injury case, including a medical

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negligence case, plaintiff’s counsel has an overwhelming and distinct advantage. It is undeniable
that in every such case, well-prepared plaintiffs’ counsel will know infinitely more about the
plaintiff, their own client, than the defence medical expert could ever possibly know. By
definition, preparation of the defence expert witness’ damages report will always predate, to a
greater or lesser degree, the discovery of some amount of significant anecdotal and/or medical
information. This is not, however, through any conscious effort on the part of plaintiff’s counsel
to withhold material evidence. Rather, it remains a fact that most trials are prepared for late in
the life of a case, and updated anecdotal and/or medical evidence may not come to light until the
last few months prior to trial.

To use but one example, if the anecdotal evidence is credible and demonstrates, despite the
strongest of contrary opinions by the defence expert, that the plaintiff really cannot do the things
that the defence expert opined he could, (like manage his own financial affairs or personal
scheduling), if the anecdotal evidence is accepted, the expert’s opinion must necessarily be
wrong!

Once again, the by-word is meticulous preparation on the part of counsel, without which no
successful cross-examination can ever be achieved.

(b) The Evaluation, Examination And Assessment

Many expert opinions rest on the adequacy of the specific examination, investigation, or
assessment undertaken by the expert. Counsel should ensure that they are properly instructed and
fully briefed by their own experts as to what constitutes an adequate examination investigation,
or assessment in the circumstances.

The same, of course, is true of the substantive issues in the case. If plaintiff’s counsel does not
have a detailed working knowledge of the substantive issues involved, he/she cannot reasonably
hope to be successful in the outcome of the case in relation to those areas. Knowing what ought
to have been done, and comparing it to what was actually done, is frequently the key to an
effective cross-examination on the issue of foundation.

(i) The Issue of Delegation

There are some professions, including the health professions, where the actual testing,
investigation and/or assessment is conducted by someone other than the expert himself. In the
practice of radiology, for example, the validity of the radiologist’s opinion is often based on the
adequacy of the films or videos taken which in turn are premised on the competence and
experience of the radiological technician who conducted the diagnostic study. In many instances,
particularly with conventional X-rays, the radiologist was likely not present at the time of the
examination. For examinations like ultrasound, which are usually conducted by a radiological
technician with the assistance of a real-time video-display, radiologists are routinely absent
during the conduct of the actual test procedure. At times, the videotape may well have even been
destroyed by the time the radiologist comes to view the pictures selected by the technician. If

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the quality of the X-rays or video snap-shots are less than satisfactory, the opinion which relies
on those same films may be as well. In an age of increasing concern for the expenditure of funds
in the health-care field, there is always a temptation to refrain from retaking an X-ray or repeating
an ultrasound examination in an effort to cut costs. The quality of these pieces of real evidence
must therefore be carefully scrutinized.

Similarly, neuropsychologists routinely use psychometrists, generally MA’s or BA’s in

psychology, to conduct the neuropsychological testing that forms the basis of the expert’s final
opinion. Do not hesitate to request and explore the credentials of these particular individuals as
well as the adequacy of the test administration or assessment procedures.

Once again, to use the Roberts case as an illustration, in that case, the defence
neuropsychological report revealed that one particular test, the Wisconsin Card Sorting Test,
formed one of the bases of a significant opinion in the case. Plaintiff’s counsel requested and
reviewed all of the raw test data and scoring sheets only to find that the test results on the
Wisconsin could not be duplicated in counsel’s office. The scoring sheet prepared by the defence
expert’s psychometrist quite simply, did not make sense. Investigation revealed that the test
results could only be duplicated if two specifically pre-numbered and sequenced cards were
removed from the set of 50 that were required to perform the test. Part of the cross-examination
of this expert consisted of requesting that the witness re-run the test in the courtroom to see if she
could duplicate the score sheet results. She could not.

As a result, counsel had the not-to-be-repeated opportunity of being able to accuse a defence
expert witness of not playing with a full deck!

(ii) Requesting the Expert Raw Data, Working Papers and Interview Notes

As must be obvious, no such cross-examination should be undertaken without first having

requested, received and reviewed in detail, well in advance of trial, all of the raw data, interview
and assessment notes, and other working papers of the defence expert whose testimony you will
be challenging. Such an analysis may reveal the omission of a significant document or test
procedure, substandard practice or, alternatively, the existence of an explosive piece of
information that did not find its way into the final report. Until you know what is in the expert’s
file, nothing can be safely assumed.

The Third Leg: Integrity of the Opinion

The essence of an ‘independent’ expert opinion, is that an expert witness must fairly, fully and
accurately describe the factual foundation and the assessment and /or examination procedures (if
any) upon which the opinion is based. Comparing the report and the opinions expressed therein
to the underlying data can reflect errors not only of omission, but of commission as well;
omission, as the result of a failure to report a significant inconsistency or contraverted finding;
commission in the use of inaccuracy, exaggeration or hyperbole.

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It is here that Bill Gates comes to our aid once again. Computer or database searches of the
witness’ name using Quicklaw may uncover evidence or other information that may be extremely
useful to you in your cross-examination. We are also all too aware of the existence of certain
court-ready experts whose cookie-cutter approach to the preparation of their reports is obvious
even upon superficial examination. Cross-examination of an expert on a myriad of previously
authored reports in other cases demonstrating identical phrasing and conclusions, for example,
can be quite effective if you can get past the objections raised with reference to the production of
the earlier reports. Once again, conducting computer searches in the OTLA and CLA expert
witness databases may also prove useful. With increasing frequency, these sources may also
reveal transcripts of prior cross-examinations on similar issues where the witness has taken a
different view.

The classic illustration of this kind of preparation is again reflected in the cross-examination of
the defence psychiatrist in the Calvert case. Based on a review of the psychiatrist-witness’
appointment book and docket-sheets, which had been obtained by opposing counsel during a pre-
trial examination, and having compared the mountain of clinical information made available to
the defence expert against the factual analysis and opinions expressed in his report, the
petitioner’s counsel, Phil Epstein, virtually annihilated the second defence expert witness on the
stand.

The trial Judge, in her reasons, summarized the impact of the evidence disclosed during
this most effective, and obviously well-prepared, cross-examination in the following way:

Dr. S. . . is a psychiatrist with a sub-specialty in geriatrics. He is the co-ordinator

of a competency clinic … After reviewing the evidence, his opinion was that she
[the petitioner] did not have the capacity to separate or divorce her husband in
February 1994. I do not accept his evidence. He was asked by counsel for Mr.
Calvert for an opinion on a Monday, received over 2500 pages of
documentation on Tuesday, and delivered his report on Thursday. All the
while, he was working full time at his practice. He admitted spending only a
few hours reviewing the document and being under considerable time pressure
from counsel. As a result of this time pressure, he made significant mistakes.
(emphasis added)

During the course of this cross-examination, once the witness had identified the huge stack of
clinical material sitting on counsel’s desk as constituting the set of documents that had been sent
to him by defence counsel, the witness was asked by Epstein to estimate how high the pile of
paper was. When objection was taken on the basis that the expert shouldn’t be forced to guess,
Epstein gave him a ruler and had him measure it: 32½ inches in all! The lesson? Occasionally,
it’s better to let the witness guess!

Nothing is more effective during the cross-examination of an expert than to demonstrate that the
witness is not conversant with the facts upon which the opinion was based. Presumably, if the
witness has chosen to comment on certain facts in the prepared report, it must arguably have

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been of some significance to him/her in the preparation of his opinion. To prove categorically
during cross-examination that the specific facts identified by the witness in the report are wrong
necessarily casts doubt on the validity of the opinions as a whole.

(i) Who Prepared the Report and the ‘Drafts’

Dealing further with the integrity of the report itself, an area worthy of exploration is whether the
report provided to plaintiff’s counsel represents the first report prepared by the defence expert or
only the last of many drafts. Counsel have been known to exchange drafts and comments with
their experts prior to the completion of the final version of the report. At times, even the location
of the report’s preparation may prove interesting. In McGregor v. Crossland7, a medical
malpractice case with a somewhat checkered judicial history, (2 trials and one appeal before the
plaintiff was successful), Taliano J., the presiding judge at the second trial, commented (during
the ruling on ‘costs’) that the report of one of the defence medical experts had been “drafted and
typed in the offices of counsel for the defendant”[paragraph 56 (c)]. I suspect that the disclosure
of evidence of this nature might well have a dampening effect on the acceptability of the expert’s
testimony to the judge or jury hearing the case.

Leg Four: The Integrity of the Science

It is not unintentional that I put the validity of the expert’s substantive opinion last. This is, of
course, generally the most difficult area to attack because it places you firmly on your expert’s
home turf. There is no question that, in the final analysis, in most instances, the expert will
know more about the general subject-matter than you will. This does not mean, however,
that you ought not take him/her on directly. It does mean, however, that you do so cautiously and
only in circumstances where you believe you can effectively neutralize his opinion. An
unsuccessful foray into the realm of the expert’s scientific arena can be deadly even if you
are successful in other portions of your cross-examination. In short, taking on an expert in
his/her own field of expertise is not an exercise that should be undertaken lightly, or, indeed, in
every case. Returning to my original analogy of a large man standing on a chair with a baseball
bat, coming at the expert in the field of his expertise is like approaching your bat wielder directly
from the front.

7
[1997] O.J. 2513 (O.C.G.D.)

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(i) Getting a Handle on the Science

At the outset, it ought not to be generally assumed that there is a valid field of scientific
endeavour upon which the opposing ‘expert’ is opining on. Aside altogether from the issue that
arises where expert evidence is itself held to be inadmissible on the basis that neither the judge or
jury needs help on the issue, the so-called science may not be science at all, but rather junk
science.8

Where, however, the subject-matter is indeed legitimate and recognized, before embarking on
any such cross-examination, you should ensure that you are thoroughly and comprehensively
briefed by a competent expert of your own. In every case where there is a significant issue at
stake, I try to sit down with qualified experts in the field, occasionally for days, to be briefed on
the subject matter in issue in the case. I insist on reviewing up-to-date literature and ask for
copies of all of the authoritative text books detailing specifically with the issue in question. No
such cross-examination should be ever undertaken until counsel has a comprehensive grasp of the
scientific issues relevant to the case.

(ii) Journals, Texts, Treatises, Articles

If your opposing expert has a university affiliation or other academic appointments, and many
called by the defence in these cases do, have your own expert conduct a literature review on your
behalf at the commencement of your cross-examination preparation. In a relatively recent case,
Ian Binnie, as he then was, was acting on behalf of American Airlines in an investment review
proceeding before the National Transportation Agency in relation to American’s investment in
Canadian Airlines, an investment strongly opposed by Air Canada. The issue was whether
American Airlines, following its investment in Canadian, could be considered as having taken
“control” of Canadian Airlines. Air Canada said yes. American said no.

In support of its position Air Canada called, as part of its expert panel, two law professors, (one
former and one current), both very prominent, with academic credentials going back 20 years.
Counsel Binnie’s cross-examination effectively neutralized both of these experts by the
completion of their testimony.

In connection with the first witness, Professor ‘T’, in a cross-examination conducted in 1993,
counsel Binnie put to him that oft-quoted and well-known text Hablo’s Casebook on Company
Law 2nd Edition published by Sweet and Maxwell in 1977! The questions focused on the issue
of competition, a subject about which the expert was knowledgeable but upon which he had not
expressed an opinion in a report, nor had any questions been put to him on that subject
during his examination-in-chief.

8
See the paper by Marlys A. Edwardh, “Recent Developments in expert evidence – How to Approach ‘Junk
Science’ ”, Law Society of Upper Canada, Expert Evidence: How, When and Why, November 11, 1998, Osgoode
Hall: Toronto

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The following objection was made by Air Canada’s counsel:

Air Canada Counsel: Madam Chair, before Professor T. . .

answers that question . . . I question the fairness and
appropriateness of now questioning this witness not on the issues
he has addressed but on an issue which he says, for the purposes of
this hearing, namely competition in the airline industry, he has not
considered and addressed.

Counsel Binnie’s response is an object lesson for all counsel who intend to cross-examine an
expert in whatever field of endeavour:

Counsel Binnie: Madam Chair . . . one of the dangers one has in

calling witnesses is that they may be asked questions that you
didn’t intend to ask but someone else might.

When dealing with the other corporate law expert, counsel Binnie put to the witness that other
hallmark of Canadian corporate law, a student textbook published in 1983 by the witness as a
casebook for first year corporate law students! The following exchange took place:

Binnie: . . . I have attached at Tab 5 extracts from your casebook

produced with Professors I. . ., J. . . and Z. . . in 1983.

Witness: – Right. . .

Binnie: In your text, at page 257 . . . you come down very hard
on the proposition that it is really not the Board but the executive officers who
manage the enterprise, right?

Counsel Binnie then got the answer that all of us love to hear but virtually never do:

Witness: It is a long time since I wrote this, just give me a

moment . . .”

Finally, wishing to leave the tribunal with a poetic description of the evils that would befall
Canada should American Airlines life-saving investment in Canadian Airlines be rejected, at the
conclusion of his cross-examination of the competition expert called solely on the issue of
corporate control, using the witness’ own words, counsel Binnie concluded with the following:

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By: Richard H. Shekter

Binnie: Do you agree with the final sentence [of your text] “the
common man always loses by monopolisation, whatever the nobal pretext
advanced to justify it.” . . .

Witness: Yes I do.

Binnie: Thank you. Those are my questions.

The lesson: if you can skewer the opposing expert with his/her own words and advance your case
at the same time, so much the better! Again, the harder you work, the luckier you get!

(iii) The Sources of the Opposing Expert’s Opinions:

Before leaving the subject of the ‘science’, cross-examination of an expert frequently involves
confronting an expert with so-called ‘authoritative’ treatises and getting the witness to
acknowledge them. Well-briefed witnesses may try to make things difficult for counsel by
refusing to acknowledge that the book or article you present to the expert is, in fact,
authoritative. To avoid this problem, consider writing to defence counsel and asking for the
source reference material utilized by the opposing expert in the course of preparing the opinion
and report, along with a request that the witness acknowledge that those materials are indeed
authoritative. You may also choose to indicate that if they are not forthcoming, the matter may
be brought to the attention of the trial judge at the commencement of the trial in the context of a
request for an adjournment and cost sanctions. Whatever the result of the request, it never hurts
to ask!

Miscellaneous Issues:

I do not mean to suggest that my four table legs are all that one ought to think about during the
cross-examination of a medical expert. Far from it. Books have been written on the subject of
cross-examination. This is, by definition, only a partial and thumbnail sketch. Nevertheless,
there are a number of peripheral matters that ought to be considered in passing.

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(1) Credibility

Whatever else an expert witness must appear to be in the eyes of a judge or a jury, it goes without
saying that at the very least they must be credible. Catching such a witness in a lie, however
small or irrelevant, can eliminate the usefulness of that witness to the party calling him/her. For
example, if by hard work, serendipity, or the liberal application of excessive zeal and the internet,
you happen upon something that concerns your opposition’s witness, hold on to it, remember it,
and wait for an opening. You never know what may come of it. Once again the Calvert case is
instructive.

During the course of a pre-trial cross-examination of the defence psychiatrist, the witness was
asked in passing whether he had ever advertised. He denied it. On the third day of the trial,
while receiving instruction from an eager young relative on the joys of the World Wide Web, to
his amazement and delight, counsel discovered that Dr. ‘S’ not only advertised but maintained his
own web-site as well! While obviously completely irrelevant to the issues, the web-site was
presented to the witness in cross-examination. In her reasons for judgment, Madam Justice
Benotto had this to say:

I found [Dr. S] frequently evasive and prepared to offer ill-

conceived, off-the-cuff explanations. He said in a previous cross-
examination that he does not advertise. When presented with his
“web-site” advertisement, he offered completely meaningless
explanations. I reject his evidence and do not accept his
opinion. (emphasis added)

(2) Bias

Let me also say a word about the subject of bias. I, for one, do not advocate the practice of
attacking the bias of a witness in every case. It is an exercise fraught with peril that can easily
backfire. If the judge or jury believe you are being excessively rude, hostile or aggressive with
the witness, they can turn on you and, by extension, your client as well. However, if you do
have the ammunition, do not hesitate to use it.

By way of example, in a 1996 prosecution by one of the Ontario health Colleges (the decision has
since been reversed by the Divisional Court), a doctor was charged with professional misconduct
for preparing reports that were, in Discipline Committee’s opinion, so biased as to constitute an
act of professional misconduct. The doctor, it seemed, was of the general view that anything less
than a serious injury was incapable of creating significant sequelae, whether physiological or
psychological. In the course of passing sentence, in one of the most peculiar sentences ever
handed down, the doctor was ordered to undergo a peer review after the preparation of 5 medico-
legal reports on the following terms:

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The review by the doctor will ensure that Dr. X appreciates that
reactions to disability may occur in relation to lessor injuries
and that he also appreciates the need to avoid statements in medico-
legal reports that are false, misleading or otherwise
improper.(emphasis)

CONCLUSION

Cross-examining your opponent’s expert remains a daunting and demanding task. It is not,
thankfully, an impossible one. In the vast majority of cases, counsel will be more successful by
utilizing an oblique or indirect attack rather than a head-on assault.

If this paper has also persuaded you that even mundane comments in the most innocuous of
documents may provide you with the opening you need to neutralize your opponent’s witness,
and that exhaustive preparation not only pays dividends but provides occasional windfalls, then
it will have served its purpose.

And lest you still think that that is a gross overstatement, place yourself in the minds of a juror in
the Rooney case and consider the following final actual exchange:

Donnelly: Let’s talk about the Princess Margaret Hospital. Do you have an office
there?

Witness: No.

Donnelly: When was the last time you had an office there?

Witness: I never had an office at Princess Margaret.

Donnelly: Do you have an association today with Princess Margaret?

Witness: Yes.

Donnelly: What is the association?

Witness: It’s simply an association essentially in name only.

Donnelly: In name only?

Witness: Yes . . .

Donnelly: . . . Doctor, is there is a reason why you don’t qualify your affiliation with
Princess Margaret, so that somebody reading your CV would understand exactly what the extent
of your affiliation is?

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By: Richard H. Shekter

Witness: Well, it was never an issue until today, Mr. Donnelly.

Donnelly: Was Baycrest an issue until today . . .

Witness: No.

Donnelly: The hospital you have nothing to do with, but that appears on your CV? Was
that an issue before today?

Witness: No.

Donnelly: Thank you.

And finally, my own personal favourite:

Donnelly: Doctor, the Workers’ Compensation Board that’s on your hospital

appointments.

Witness: Yes.

Donnelly: Are you telling this court that you are currently appointed to the Workers’
Compensation Board hospital?

Witness: No.

Donnelly: That’s what it says on your CV.

Witness: Well, it says it under “hospital appointment” but there really is no hospital .
(emphasis added) .

Try it, and if it works, it can be a lot of fun!

Richard H. Shekter
Toronto: May 3 2012

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