A Guide to Direct Examination and Cross-Examination

Direct examination is your turn to put your money where your mouth is—to let the jury
hear from the witnesses you’ve said will prove the case or see the documents you said
will set your client free. Cross-examination, on the other hand, is where you limit
damage by pinning the witness down with very specific questions—and by knowing
when to stop asking questions for the sake of your case.

Direct Examination

Regardless of the brilliance and eloquence of voir dire and opening, the jury is eager to
meet the people they’ve been hearing about, to listen to real evidence, to go to work.

For good or bad, jury members are confident their impressions of the litigants are
correct and complete. The introductory moments of direct examination are a valuable
chance to show jurors there is more to be heard, learned, and assessed. Although the
trial to date has centered on the lawyers, now both spotlight and style shift to focus on
witnesses and testimony. That shift in no way implies an attorney’s abdication of
courtroom command, however. In fact, the style shift underscores command as it yields
the starring role and assumes the vital function of facilitator. The jury, therefore, sees a
new and comforting facet of attorney competence, confidence, and mastery of the case.
Instead of narrative teaching, direct examination shifts to short, crisp bursts of inquiry
that invite attentive listening and satisfy curiosities. The staccato style quickly is
perceived as a juror service, almost instantly voicing questions as they pop into the
jurors’ own minds. For example, if a witness finishes an answer by stating, “I was
shocked,” the greatest jury service (and highest drama) is performed with a prompt and
simple “Why?”

Qualities of a good direct examination. After analysis of the available evidence, the

next most important decision is how testimony will be “packaged.” If the witness will tell
a story, the best form is a chronological line of inquiry, beginning as early as is pertinent
and ending in the courtroom. Example:
 When did you first lean about Timmy's condition?
 What happened after that?
 Then what happened?

On the other hand, a witness whose testimony supports a case theme or lists reasons
why the event in question might have occurred will be showcased better using a
“logical” line of inquiry. Example:
 Please list for us all the reasons why the machine was dangerous.
 Why don't you stand up and write them on the blackboard as you explain them to
us.

A combination of the two approaches, when appropriate, will add variety and make the
examination more interesting.
 Accrediting the witness. Early on, probably first, explain how this witness fits into the
big picture. Using and annotating the visual aids (storyboard or checklist) used in
opening works well here. Example:
 Now you actually saw the accident?
 Let's discuss everything you saw.
 What did you see first?

Framing questions. The trial’s purpose is to connect the jurors’ minds and hearts to
the facts of the plaintiff’s case. Common, straightforward language enhances the
connection; “lawyer talk” is static on the line. A question that begins with a stuffy “Tell
the ladies and gentlemen of the jury” isolates the jury and impedes communication.
Better is a simple “tell us.” Instead of the formal “state your name,” an informal
“introduce yourself to us” moves things forward more gracefully.

A greater threat is that the impact of a key witness can be diminished if defense
counsel’s barrage of objections interrupts testimony. Careful question construction—
with special attention to first words—can avert most “leading” objections:
 Who
 What
 Where
 When
 Why
 How
 Describe

Using eye-lines. After a witness is sworn in, a well-prepared lawyer need never consult
notes or look away from the faces of the witness and (occasionally) the jurors. It is
similarly wise to avoid looking to the judge for feedback or reaction. Doing so risks
missing a facial expression that calls for pause, a grimace that needs response, or a
reaction that suggests an important point requires clarification. Undivided attention to
the witness emphasizes the importance of the testimony for the jury; the lawyer’s
capacity to respond to the moment underscores the exchange’s spontaneity and the
advocate’s command.

Don’t lead, but tag the question. Before a parade of “What happened next?”
questions becomes tiresome, one should capitalize on a favorable witness response
with a “base-tagging” technique. A repetition of the favorable response to tag the next
question (“After you saw the defendant’s face, what happened next?”) amplifies
importance and varies the pace while it offers a sense of logical and unrehearsed
dialogue between examiner and witness.

Using vocal inflections. In normal conversation, questions end with an upward vocal
inflection. Rote intonation implies that witness and testimony are dull and unworthy of
attention. A vocal rise, on the other hand, segues attention to the witness and piques
the jury’s curiosity.
Styling: A three-way conversation. A perfect opening statement sounds exactly like
we are talking to a trusted friend about something that might change her life. Similarly,
the perfect direct examination sounds like two interested people having a normal
conversation about an exciting subject; the jury is welcomed as the conversation’s third
party. No matter how tempting it might be to mimic the successful, compelling
approaches of mentors and heroes, a lawyer’s most effective trial style is consistent
with the mood and tone established in voir dire and opening—competent, helpful,
decent, and real—with honor and confidence enough to reveal the contents of the
attorney’s head and heart to the jury.

Programming for primacy and recency. Most memorable data come first and last in a
presentation. Keep this in mind when planning and outlining any witness’s testimony. A
wise examiner often kicks off by positioning the witness in the case, then builds to the
questions for which the witness was called for a final flourish of testimony that reinforces
case themes.

Cross-Examination

Cross-examination’s role is damage control. If it is done well, the hostile witness will not
gain much ground. If it is done poorly, however, cross-examination can result in a
turning of the tide. An important, and obvious, goal during cross-examination is to avoid
assisting the witness with being persuasive to the jury.

The two most difficult tasks facing us in cross-examination are eliminating wiggle room
in our questions and knowing when to stop. Wiggle room is available to the hostile
witness whenever the question asks too much. We should avoid wiggle room by asking
questions that can be answered only “yes” or “no.” A string of “yes” answers implies that
the witness has been won over; a string of “no” answers implies some kind of weakness
or failure on the part of the witness.

Q: You’re not a medical doctor.

A: No.
Q: You never studied toxicology.
A: No.
Q: You don’t know the scientific theories that support Breathalyzers.
A: No.
Q: You don’t even know how a Breathalyzer works.
A: No.
Q: So you have no opinion about how the Breathalyzer registered 0.20 after you were
pulled over by the policeman.
A: No.
Superb cross-examinations have been compromised when the examiner did not know
when to stop. An advocate who gets greedy or compulsive after scoring big points
sometimes pursues untested or equivocal answers that risk both momentum and the
dramatic “high note.” Gauging when to sit down is often the most important power tool in
the cross-examiner’s tool box.
Qualities of a good cross-examination.

Questions. Planning the testimony all the way through, with focus on damage control,
produces questioning that preserves courtroom command and reaffirms that the
plaintiff’s advocate is more interesting to the jury than the defendant’s witness.

Good questions:
 Are leading
 Are short
 Are simple
 Maintain control

Seek facts, not conclusions. The opponent’s witnesses are “their” witnesses. It’s not on
their agenda to support the plaintiff’s case. It is important to keep this in mind,
particularly when plaintiff’s attorneys are so saturated in case details that certain facts
lead to conclusions that seem obvious and inevitable. Even when they look like sure
winners, it’s best to avoid questions that run afoul of this wisdom. Safer is stronger in
cross-examination—and it’s safer to stick with facts.

Poor example:
Q: The plaintiff was fired because he hurt himself on the job, wasn’t he?
A: No. The plaintiff was fired because he didn’t do the job.
Good example:
Q: The plaintiff was hurt on February 12, 1996, correct?
A: Yes.
Q: You learned about his injury on February 13, 1996, correct?
A: Yes.
Q: And you fired him on February 14, 1996, correct?
A: Yes.

The examiner. It is important to protect the investment of head and heart made in voir
dire and opening and to use cross-examination to deepen the impression that the jurors
have a reliable and accurate picture of the advocate.

The effective cross-examiner is:

 Friendly Courteous
 Respectful
 Efficient
 In command
 Requesting facts, not conclusions
 Aware of a “high note” and ready to sit down after one occurs

The effective cross-examiner does not:

 Argue over irrelevant details
 Ask a question without knowing the answer
 Give a witness a chance to explain
 Ask “Why?”

Asserting authority with question structure. Leading questions that begin with a

statement and leave the query to the end reinforce command by underscoring that the
examiner is completely confident of the answer. It is better to construct the inquiry with
the questions coming after a statement of pejorative fact. Example: “And you flunked
the Breathalyzer test, didn’t you?”

Words/phrases to avoid:
 Did you . . . ?
 Do you . . . ?
 Have you . . . ?
 Is there . . . ?
 Was there . . . ?
 Could . . . ?
 Would . . . ?

Common objections during cross-examination. Good cross-examination controls

the damage done by the opponent’s witness, while it seeks opportunities to undermine
the impact and credibility of the opponent’s case themes. Effective cross-examiners
structure questions to avoid losing the momentum and command that are yielded when
testimony is peppered with the opponent’s objections. It is recommended that you keep
in mind a list of the most common objections in cross-examination in order to plan well-
controlled testimony.

Common objections:
 No good-faith basis for question
 Argumentative
 Misquoting witness
 Assuming facts not in evidence
 Compound question
 Asked and answered
 Improper impeachment
 Beyond the scope of direct
 Hearsay

Outline of a good cross-examination.

Planning the questioning. Following are guidelines for planning three major types of
cross-examinations, keeping in mind that effective technique usually covers the territory
with queries beginning with a statement and ending with a question designed to elicit a
simple yes or no answer.

On events:
 When?
 Where?
 How long?
 Who was there?
 Where are they today?
 Who else knows?

On conversations:
 How many?
 When?
 Where?
 How long did it last?
 Who was there?
 Where are they today?
 Substance?
 Recorded?
 Actions taken after conversation?

On documents:
 When prepared?
 Why prepared?
 Who prepared?
 Prior drafts?
 Where is the original?
 Any attachments?
 Anything missing?

Elements of cross-examination. Cross-examination seeks to invalidate the impact of the

opponent’s direct. A good plan for structuring the inquiry is to go for the questions to
which the witness must agree with a string of “yes” responses, followed by a series of
questions the answers to which the witness does not know or must answer “No.” It can
go something like this:

“Yes” questions:
 Doctor, do you agree that the most likely cause of meconium staining is hypoxia?
 You agree that hypoxia can causebrain damage?
 You agree that an episode of hypoxia can affect the fetal heart activity as
revealed on monitor strips?
 You agree that if a fetus shows this kind of distress, the OB should consider a C-
section?

“No” questions:
 Now, you weren’t there?
 You didn’t see the incident?
 You don’t know how badly the car was damaged?
 You didn’t see the condition of the passengers when they were removed from the
car?

After command has been established, it often is appropriate to attempt witness

impeachment. Typical grounds include bias, ability to observe, ability to recall,
unfamiliarity with facts, and lack of qualifications.

On the other hand, these effective elements of cross-examination are instantly

abandoned if the witness surrenders the chance for an unexpected knockout punch.
Handled well, it is a great opportunity for high drama: (1) Hold the moment with stillness
of movement and words, then (2) abruptly dismiss the witness. (Remember the impact
in the movie A Time to Kill, when the prosecutor’s voice, dripping with disgust, said “I
have no further use for this witness, Your Honor.”)

Two steps to impeachment. Impeachment is a tough sell, even when the law is on the
examiner’s side, if only because the jury is not experienced in discerning discrete and
subtle points of law. What may be obvious to professionals may be lost on the jury
unless it is framed in a way that warns the finders of fact that they are on the brink of
hearing something big.

Establishing the maxim. An open-ended question signals high drama to come when
setting up a witness for impeachment. This example, from testimony in a divorce case,
reveals how the witness husband was allowed to dig his own verbal grave:
Q: Sir, fidelity in marriage is important, isn’t it?
A: Yes.
Q: Why?
A: [Any answer helps the examiner.]

In fact, if the witness responds with more than one reason, it might be useful to list
answers on the blackboard or flipchart. The key is to present a maxim or rule that is
virtually universal in order to corner the witness into a first-step “Yes” answer:
 It is important to be truthful with police officers.
 Tenants should be able to trust that their landlords have taken reasonable steps
to ensure safety.
 Experts should be completely honest when they write their reports.
 Manufacturers should protect their customers from dangerous products.
 Experts should remain neutral when reviewing a case.

Confronting the witness. Once a witness has endorsed the maxim as universal,

impeachment is available through confrontation of the witness with facts of the case that
imply violation of the universal rule. Vigilant examiners avoid asking the witness directly
if he violated the rule; the wiser approach is to confront the witness with the bare
minimum facts that reveal the violation, keeping in mind the dangers of questions that
ask too much or that ask for conclusions. Careful question construction restricts and
exposes the witness at the same time. Following are bad and good examples of this
technique. They came from a divorce case.
Poor execution:
Q: And you lack fidelity, don’t you, sir?
A: No. I’ve always been faithful. She just never believed me.

Good execution:
Q: And your wife stated in her petition that you had an affair with your secretary last
year, correct?
A: Yes.

Remembering the key to cross-examination—damage control through the elimination of

wiggle room and recognizing when to stop—will assist you in focusing your questions
and staying on task. Unless the opponent’s witness is completely inept, some ground is
expected to be lost. The question of how much ground, however, depends on you.

Conclusion
Direct and cross-examination are where the jury becomes familiar with the evidence,
with the credibility of witnesses, and with your true belief in your case. Be prepared, but
be fluid. Although direct and cross are more structured than opening statement, they are
still dynamic. Your ability to connect with the witness during direct, or discredit the
witness during cross, ultimately requires you to stay true to your own style and believe
in yourself. If, during direct and cross, you score half the goals you set out to score, then
you will be a world champion.

CROSS EXAMINATION FORM AND STRATEGIES:

-Make statements don't ask questions (leading questions a must) ISN'T IT A FACT......
-Avoid who, what, when, where and why form questions (save that for direct)
-But make statements you can back up with discovery docs, statements of other
witnesses or physical evidence. (Remember: must always have good faith basis to ask
question).
-Have flow and direction. Cross is not the time for discovery.
-Know exactly what you want to get and where you want to get to (ie. GPS navigation)
-Short, sweet and to the point
-Only a few strong points
- knockout punches not jabs (unless jab establishes an important small piece in the
larger knockout puzzle)
-Have follow up no matter what the answer- never want to be shut down by witness

CROSS EXAMINER DEMEANOR:

-Never let them see you sweat
-Always appear as if answer you got was one you wanted and expected
-Always maintain calm demeanor and good poker face -Believe in the points you're
making
- will convey that message to jurors

THINGS CRITICAL TO KEEP IN MIND:

-All questions MUST have a point and advance the theory of your case
- if not don't bother
-Never ask a question you don't know the answer to (get answers during hearings)
-Know when to stop
- beware of the one question too many
-Stop when you're ahead
-Don't hold out for Perry Mason moment- it isn't coming. It never does.
-If you score a knockout punch don't beat a dead horse. Leave it to be beaten to death
on your summation.
-Why? Don't give witness the opportunity to correct knockout
- hope adversary forgets on redirect. You will be surprised how often they do.
-Don't ask question just to hear yourself speak- you don't get paid by the word
-Consider lunch, evening and weekend breaks and how it will leave jurors thinking and
how it might affect adversaries additional preparation time.
- Trial attorneys must be control freaks
- like scud missile systemmonitor horizon for any and all possible threats and blow it
from sky.
- EVERYTHING, EVERYTHING, EVERYTHING THAT HAPPENS IN COURTROOM IS
SOMETHING TO THINK ABOUT IN-SO-FAR AS HOW IT CAN POSSIBLY EFFECT
YOUR CASE AND THE JURORS PERCEPTION OF YOUR CASE. THINGS TO
AVOID:
-Never get snippy or argumentative with witness
- you will appear as if losing control of witness
-Never mock or ridicule witness
- might turn off jurors
-Don't make condescending gestures at jurors while cross examining witnesses
-Don't demean adversary or court while cross examining

WHAT TO DO IN COURT DURING WITNESSES DIRECT EXAMINATION: LISTEN-

LISTEN- LISTEN!
-Time to plan cross is NOT during witnesses direct examination
-Cross should already be mapped out based upon discovery of prosecution or your
investigation
-Listen on direct for OTHER matters arising for first time and try to acclimate into your
cross theory and questioning already laid out. (Gold dropped in your lap).
-To be most effective must know all witnesses prior testimony and statements COLD in
order to make most effective use of MEANINGFULL inconsistencies BE A
STRATEGIST AND TACTICIAN AND NOT MERELY A TECHNICIAN (THE WORDS
OF THE GREAT DAN MCCARTHY)
-Be clever with questions posed. Try to box witness in.
-Don't telegraph where you're heading if possible
-When reviewing Rosario material (every single mark) think through how each point
might play itself out in front of the jury. Be prepared to go in any direction that witnesses
answer takes you.
- Have your cross document in a very easy to locate and usable order. Must develop
your own method. - Second seat is great for this. (he makes snowballs and I throw
them)
- I separate documents in manilla folders by witness. General and basic principles:
− Be interesting and not boring
− Don't let adversary objections or court interruptions sidetrack you
− Get back to point at some point
− If at first you don't succeed try again
− If point is important enough to make in first place it's important enough to get back to
and make after distraction or failed attempt.
− On the other hand- if getting nowhere its OK to let it go rather than looking silly,
desperate and losing credibility and authority with jurors A similar definition as US
Supreme Court Justice Potter Stewart's definition of pornography can be used to
describe a bad cross examination I can't explain exactly what it is but I know it when I
see it. You will know and feel when you are getting nowhere with a line of questioning
during cross
– It’s all in the setup
- you should by trial know case better than anyone, including the judge
-Don't get discouraged if Judge instructs you to move on to something relevant
-You may ask court if objection is to substance or form Of course you MUST abide by
all court directions but always try to do your thing and make your points. Sometimes all
you can do is preserve issue for appeal and move on. (issue is violation of confrontation
clause- of right to fully and fairly confront witness)
- Lots of discretion with trial judge so don't overdue. Will only alienate the judge.
Preserve record for appeal and move on
-DO cross heavily: on lack of evidence on investigative techniques and methods not
employed and used
- Makes cops look incompetent and advances “rush to judgment” defense if appropriate
- Beware to avoid “why not” question. Cop will always have excuse

Cross-Examination of Medical Doctors:

Expert Not a Treating Physician

While it might seem obvious that the defendant's expert is not a treating physician, this
fact must be pointed out on cross:
Q. Doctor, you treat patients, true?
Q. You have been treating them for more than 20 years, true?
Q. You have had the opportunity to observe them?
Q. To give them medication?
Q. To recommend medical treatment for them?
Q. But there is no question about this: you never once treated my client, true?

Immediately, you establish the doctor's function is nothing more than an examiner on
behalf of the defendant. This is particularly useful where you are calling a treating
doctor, who has seen your client over a period of years. Moreover, when the opposing
expert makes a substantial portion of his income performing these examinations, you
have begun to set up your collateral attack in that area.
No Doctor-Patient Relationship
The fact that the defense medical expert is not a treating physician, and thus, not
involved in the actual care and decision making regarding the plaintiff's injuries, can be
brought to light in other ways as well. For instance, in contrast to the treating physician,
this doctor must concede that his examination created no doctor-patient
relationship with your client:
Q. In treating your patients, you are aware that you have created a relationship with
them, true?
Q. You have heard of the "Doctor/Patient Relationship"?
Q. That's a relationship that is sacred?
Q. So important is that relationship that you cannot divulge information without your
patient's consent?
Q. But with respect to my client, there is no doctor/patient relationship, true?
Q. Your relationship is solely with the [defense law firm]?
Q. They are the ones who hired you in this case?

Examination Was Solely for Litigation

Continue with this line of questioning to reinforce to the jury that litigation is the only
reason that thisdoctor is involved with your client:
Q. Unlike your own patients, you were not attempting to help the plaintiff?
Q. You were merely evaluating her?
Q. Your report was not something that you intended to send to a treating doctor?
Q. Your intent was to send it to a law firm, correct?
Q. The law firm representing the defendant?
Q. That's why the report is not addressed to any treating doctor, true?
Q. It's addressed to the defendant's firm?
Q. You certainly knew that you might have to come to court to testify about your
findings?

Only One Examination

Having established that the witness has not been involved with your client as a  treating
physician, you can springboard into an attack on the expert's ability to accurately offer
his opinion. Specifically, you can show that a physician hired by a defendant to perform
an exam is getting a limited snapshot of a patient's condition, as opposed to a treating
doctor who has had the opportunity to observe your client over a period of years:
Q. You pride yourself on the examinations you conduct on your own patients, true?
Q. Your examination of the plaintiff clearly was more limited than those you conduct on
your own patients, right?
Q. You certainly never saw my client before the accident?
Q. Here you conducted one and only one examination?
Q. An examination which lasted less than 15 minutes?
Some doctors may resist conceding this line of inquiry, and instead will maintain that
the examination that they performed on your client was the same one they would have
done on a private patient. Here, it's important to have accurate notes regarding
the exam, taken by the person in your office who accompanies the plaintiff to the
doctor's office. The notes should include a review of the tests performed by the doctor,
and the time at which the exam began and ended. When confronted with these notes, a
doctor will be hard pressed to dispute the timing of the exam, or the details of the exam
which occurred at least several months before his in-court testimony.

Exam Is Remote in Time

Not only is the examination a one-time opportunity for the defendant's expert, but it, by
necessity, occurs well into the litigation, long after the accident itself. This, too, provides
fertile ground to undermine the doctor's ultimate conclusion:
Q. When you treat patients, they often come to you shortly after an injury occurred?
Q. You then have an opportunity to view first hand the extent of the trauma?
Q. You can lay out a course of treatment, true?
Q. You can even continually adjust your differential diagnosis?
Q. And even adjust your course of treatment?
Q. But with respect to my client, you saw her two years after the accident?
Q. And all you were able to focus on were the complaints on that one day at that one
time?

This last question is crucial in situations in which plaintiffs with chronic problems tell the
defendant's doctor that they are feeling well on the day of his examination. It is
undisputed that people who suffer from arthritis following trauma and/or surgery will
enjoy good days and endure bad ones. Where the defendant's doctor saw your client on
a pain-free day, the point must be made that such a finding is not inconsistent with a
person who suffers from the sequels of his injury on a regular basis.

Pit the Treating Doctor Against the Examining Physician

In fact, it is only through serial visits over a lengthy period of time that a doctor can form
a full, fair and accurate opinion of a patient's condition. Here, there is a stark
difference between a treating doctorwho has had the opportunity to evaluate over time
and the one-time examiner you are now questioning. Indeed, all of the techniques set
forth above should lead you to this comparison, weakening the defendant's position
while strengthening your own:
Q. Certainly you are aware that [plaintiff's doctor] has had the opportunity to evaluate
the patient numerous times over the last two years?
Q. Certainly, he has had more of an opportunity than you to evaluate the patient?
Q. Unlike you, he has actually rendered treatment?
Q. Unlike you, he has actually taken X-rays?
Q. Unlike you, he has actually prescribed medications?
Q. Wouldn't you agree that his continued examination over the course of a two year
period puts him in a better position than you to offer a medical opinion?

In a sense, your entire cross-examination to this point has led up to this final question.
If, by chance, the witness actually agrees with this point, you have gotten him to tell the
jury that your doctor is simply more worthy of belief than he is. If, as you must expect,
he denies that your doctor owns any advantage over him in offering the jury an opinion,
the force of your attack up to now will cast doubt in the jury's mind about his credibility.
Moreover, now is the time to challenge his believability in other ways.
Lack of Publications
One area where the doctor may be vulnerable is his failure to publish articles or papers
on the subject matter on which he is testifying. You can bring this out in an attempt to
prove that he is something less than an authority in his field:
Q. You are aware that there are several journals devoted to publishing articles about
your medical field?
Q. And you know that doctors, such as yourself, publish the articles and papers?
Q. They serve the purpose of educating other doctors, true?
Q. They contribute to the quality of care that physicians offer their patients, right?
Q. You, yourself, rely upon these publications in order to stay informed and up-to-date
in your field, correct?
Q. In fact, you teach others to read these materials, right?
Although you have been asking leading questions throughout your cross-examination,
this situation presents an excellent opportunity to use low-risk, open-ended questions.
In doing so, you can work from the specific to the general to force the expert to
continually emphasize his lack of publications:
Q. Sir, tell the jury how many articles you have written on traumatically induced
lumbar herniated disks?
A. None.
Q. Let's broaden it out. How many articles have you written about disk injury?
A. Zero.
Q. How many articles have you written about spinal cord injury?
A. None.
Q. Well, how many articles have you written about low back injury?
A. None.
Q. How many articles have you published in your 20-year career about back injuries?
A. None.
Q. Sir, please tell the jury how many articles you have published in your field in your 20-
year career?

Rather than having led the witness through his answer, he is now forced into the
position of informing the jury that he has not published in his field. When used
judiciously, the open-ended-question on cross can enhance the power of your message.
Moreover, if the doctor is well-published, but not in the specific area in which he is
testifying in your case, you can use that fact to suggest that his expertise lies
elsewhere.

Frequent Testifier
Another way of attacking the expert's credibility is an inquiry into the number of cases
with which he has gotten involved as an expert. If your jury verdict search reveals an
expert who frequently testifies on behalf of defendants, this fact opens another line of
inquiry. Indeed, it is not hard to show the amount of money that the doctor makes
performing these exams and coming to court. Remember that a doctormust concede
he performs at least 20 exams for each time he actually has to go to court and testify.
By multiplying those numbers, you can show that this doctor is beholden to the
defendants and must offer opinions supportive of their positions.
On the other hand, an expert who has previously testified for plaintiffs may have given
testimony about the injury your client sustained in which he predicted a far grimmer
prognosis than he now projects as a defendant's expert. You can use this material in
two ways: first, on the medicine itself to show, by his own admission, how devastating
the injuries can be, and second, to impeach his credibility generally by revealing that his
opinion is influenced more by the side for whom he's testifying than by the true medical
facts of the case.

77 Cross Examination Questions for Expert Witnesses

Head on Attacks on Credibility

ð      Isn’t it a fact that your professional license was suspended in 2014 in the State of
Florida?
ð      You were convicted of perjury in 2002, weren’t you?
ð      You were censured in 2013 by your professional organization for giving misleading
expert testimony, weren’t you?
ð      You have lied many times in your life, haven’t you?
ð      Are you the same [name of expert] whose expert opinion was found to be “wholly
unreliable” by US District Judge Smith of New York?
 
Learned Treatises
ð      Do you consider [such and such source] to be authoritative?
ð      Do you agree or disagree with the following statement from [such and such
source]?
 
Investigation/Research
ð      You didn’t have all the time you needed to do a proper job in this case, did you?
ð      You never reviewed [such and such document], did you?
ð      You never visited the accident scene, did you?
ð      You never read [so and so’s] deposition, did you?
ð      You never personally did [such and such], did you?
ð      You never were provided with [such and such document], were you?
ð      You never even asked to do [such and such], did you?
ð      There are bugs in the computer program you used, aren’t there?
ð      Your opinion is based on a number of assumptions, isn’t it?
ð      You cherry picked only the supportive studies, didn’t you?
ð      You intentionally destroyed the notes you took in this case, didn’t you?
 
Testing
ð      There were other tests you could have performed, weren’t there?
ð      Is [such and such] one of the tests you could have performed?
ð      You never performed [such and such test], did you?
 
Hired Gun/Professional Witness
ð      You are being paid $500 an hour to be here today, aren’t you?
ð      You are making over $200,000 a year serving as an expert witness, aren’t you?
ð      You are here, because you are paid to be here, right?
ð      You actively seek out more expert witness assignments, don’t you?
ð      Is this a copy of your listing in SEAK’s National Directory of Expert Witnesses?
ð      You are listed with several expert witness referral services, aren’t you?
ð      You are a professional expert witness, aren’t you?
 
Bias
ð      100% of your expert witness work is on behalf of defendants, isn’t it?
ð      You have been retained by retaining counsel on dozens of other cases, haven’t
you?
ð      If plaintiff loses this case, isn’t it a fact that you are highly unlikely to collect all the
fees that you are owed?
ð      The defendant is a friend of yours, isn’t he?
ð      You own a large chunk of stock of the plaintiff’s company, don’t you?
ð      You would like the plaintiff to prevail, wouldn’t you?
ð      You live over 1,500 miles from here, don’t you?
ð      As a Democrat, you believe in wealth redistribution, don’t you?
ð      As a Republican, you believe in tort reform, don’t you?
ð      You state on your web page do you not, quote, “Call me today and I’ll help you win
your case” unquote, don’t you?
 
Impeachment
ð      Did you state at your deposition [such and such which is inconsistent with what you
are saying today]?
ð      Did you write in [article] [such and such which is inconsistent with what you are
saying today]?
ð      Did you write in [your report] [such and such which is inconsistent with what you
are saying today]?
 
Influence of Retaining Counsel
ð      You used those words in your report because retaining counsel asked you to use
them, isn’t that right?
ð      Counsel had you on a budget, didn’t he?
ð      You told counsel exactly what he wanted to hear, didn’t you?
ð      Retaining counsel helped you write your report, didn’t he?
 
Qualifications
ð      You don’t have [such and such credential] do you?
ð      You flunked your boards the first two times you took them, didn’t you?
ð      You are a jack of all trades, master of none, aren’t you?
ð      You have never published in your field, have you?
ð      You have never been invited to present on this topic, have you?
ð      You hold zero academic appointments, isn’t that correct?
ð      You were a mediocre student, weren’t you?
ð      You have never won any awards in your field, have you?
ð      You haven’t any real world experience in this field in the last ten years, do you?
ð      You are not really an expert in this area are you?
ð      Even you would agree that our expert witness [Ms. So and So] is more qualified
than you?
 
Methodology
ð      Your theory in this case was specifically developed for litigation purposes, wasn’t
it?
ð      Would you agree with me that your methodology is not generally accepted in the
field?
ð      You weren’t able to calculate a margin of error, were you?
ð      Your methodology has never been subjected to peer review and publication, has
it?
ð      You never built a prototype of your proposed alternative design, did you?
ð      You extrapolated, didn’t you?
ð      You never ruled out [such and such alternative explanation], did you?
ð      Your math is just plain wrong, isn’t it?
ð      You didn’t comply with [such and such professional standard] in this case, did you?
 
Opinions
ð      You are not 100% sure of your opinion, are you?
ð      You can’t provide any objective justification for that opinion, can you?
ð      You are just saying what retaining counsel is paying you to say, isn’t that true?
ð      You formed your opinion before you had all relevant information, didn’t you?
ð      Your opinion is exaggerated, isn’t it?
ð      Your opinion is the same in every case, isn’t it?
 
Your Report
ð      Are you aware of the 27 different mistakes in your report?
ð      Your reports from other cases are in many ways identical to your report in the
case, aren’t they?
ð      Retaining counsel asked you to use those words in your report, didn’t he?
ð      And you used those words despite not fully understanding what they mean, didn’t
you?
ð      You weren’t under oath when you wrote your report, were you?
ð      Am I correct in assuming that you have heard of the expression “it wasn’t
documented it wasn’t done?”

Sample questions to ask when cross-examining witnesses at a Supreme Court

trial

If you are representing yourself in a Supreme Court trial, you may have to ask the other
party's witnesses questions. This is calledcross-examination. There are two main
purposes for cross-examination:
 to have the witness give evidence that helps you, and
 to ask the witness more questions about any evidence they've already given that
you consider to be incorrect.
You ask cross-examination questions based on a theory. Using the example of Angela
and James Smith as set out in our sample affidavit, below are some sample questions
for Angela's cross-examination of James, based on her theory that equal parenting
would be impractical because of James' work schedule. In this example, James Smith
has already given his own testimony, which allows Angela the opportunity to cross-
examine him.

The rules about cross-examination are more flexible than they are for direct
examination. For example, in cross-examination, you can ask leading questions and
challenge the other party's evidence. 

Tips for cross-examination:

 You may ask leading questions — that is, give the witness the answer you are
looking for in your question.
 Don't ask narrative questions — you must ask single, specific questions. An
example of a narrative question would be "Tell us everything you did that day."
 Don't ask opinion-based questions — witnesses must only testify about what they
personally saw, heard, or did.
See also our fact sheet Present your evidence in Supreme Court.

The following questions are about parenting, and are based on the case of Angela and
James Smith, whose case also appears in our sample affidavit.
Sample cross-examination of James Smith (respondent) by Angela Smith
(claimant)
1. Please state your name for the record.
2. Can you please confirm that you are the respondent in the Supreme Court file
#________.
3. You are working as an electrician for Inland Electrical Company, is that correct?
4. Your boss's name is Peter Left?
5. You started working for Peter Left in October 2010?
6. Is it true that Mr. Left sometimes asks you to work on Saturdays?
7. Mr. Left sometimes asks you to work after 5 p.m., isn't that right?
8. How often have you worked past 5 p.m. for Mr. Left in the last three months?
9. How many of these times have you worked until after 6:30 p.m.?
10. Is it true that you have never refused to work the overtime that Mr. Left
requested?
11. Is it true that you have never started work as late as 9:30 a.m.?
12. Is it true that you have never finished work as early as 3:00 p.m.?
13. The children attend after-school care during the weekdays when they are in your
care, correct?
14. They are often the last children remaining at after-school care when you arrive to
pick them up, isn't that right?
15. Your cousin, Gwen Smith, sometimes has to pick the children up from after
school care when you are working late, is that correct?
16. How often in the last two months has your cousin had to pick the children up at
after-school care due to your work schedule?
 17. Is it true that you have never left work to take care of a sick child?
18. Is it true that you have never left work to take one of the children to an
appointment?
19. You have dropped the children off at school late 6 times in the month of May
2015, isn't that correct?

Below are three examples of how to confront a witness about incorrect, false, or
contradictory evidence.

To impeach (accuse) a witness based on an earlier inconsistent statement, you must

recommit the witness by having them verify (confirm) their earlier statement before you
can challenge it.

The following examples show how you can challenge the witness's earlier testimony or
statement by:
 asking more questions,
 providing documents to disprove what the witness said earlier, and
 providing evidence of the witness's earlier inconsistent statement to compare it to
their testimony.

Sample questions for challenging a witness's statement
1. In direct examination, you stated that you only missed parenting time on two
days since your separation in May 2015, correct?
2. You spent three weeks in September 2015 on a business trip in the United
States, is that right?
3. You only saw the children for one week in September, is that right?
4. You missed an entire week of parenting time in September?

Sample questions if you provide documents or other evidence to challenge a

witness's statement

To use a document to confront a witness on an inconsistent statement, you must have

the witness verify the document (agree that it contains what they said) before you can
challenge their statement. In some cases, you may use emails or text messages.
1. You testified in direct examination that the claimant never offered to give you
make-up parenting time for the time you missed during your business trip in
September 2015, is that true?
2. Do you remember getting an email from the claimant on September 30, 2015
offering you make-up time for the week you missed while you were away?
3. I am handing you an email dated September 30, 2015, sent from the claimant's
email account. Can you confirm that the email address it was sent to is your
email address? Is the email address it was sent from the claimant's email
address you use?
4. Please look at the first paragraph of the email and follow along as I read it out
loud. It says "Hello, James. I am emailing to see if you would like to have the
 children next weekend to make up some of the time that you missed while you
were away for your business trip." Do you recall receiving this email?
5. This email is followed by a reply email from your email account to the claimant's
email account that says, "I'm busy that weekend. I'll just see them at my regularly
scheduled time," correct?
6. My Lord/My Lady, I'd like to offer this document as the next exhibit.
7.
Important: Documents must be admitted as evidence at the trial before the judge will
consider them to be evidence. Once you have verified the document with the witness,
you must enter it as an exhibit and pass a copy to the judge. See our fact sheet  Present
your evidence in Supreme Court.

Sample questions to challenge a witness's statement by pointing out their earlier

inconsistent statements

Sometimes a witness may have made a statement in an affidavit or at discovery that is

inconsistent (not reliable). To confront the witness about their inconsistent statement,
you must first have the witness verify the statement.
1. Do you remember making an affidavit on November 7, 2015?
2. Is this the affidavit you swore?
3. You swore it in front of Jack Sayward, a lawyer in Kelowna, correct?
4. You knew when you signed the affidavit that you were swearing that the
information in the affidavit was true?
5. I am going to read paragraph 9 of your affidavit out loud, if you can please read
along with me. It says, "I have never been charged with any offence of any kind."
6. Didn't you testify in direct examination that you are currently in court proceedings
because you were charged with driving under the influence of alcohol on July 15,
2015?