Direct Examination of the Expert Witness: 10

Basic Rules
INTRODUCTION

It perhaps sounds surprising, but the most difficult skill to master

in trial advocacy may be conducting good direct examination of a
witness, particularly an expert witness. The conventional
thinking, no doubt, is that a trial lawyer’s “real” skill is measured
by his ability to conduct damaging cross-examination or
persuasive closing argument. Those phases of trial performance,
however, are arguably easier for the lawyer to conduct for one
simple reason: The lawyer is less “shackled” by courtroom rules
or mechanics. For example, during cross-examination, the lawyer
is entitled to use leading questions, a huge advantage. Leading
questions, as the term suggests, permit the lawyer to “lead” the
witness where he wants to go. On direct examination, however,
the prohibition on leading questions puts the lawyer in the
position where the success of the examination is much more
dependent upon the ability of the individual witness to listen,
understand and respond to questions. During closing argument,
the lawyer is even less “shackled” than he is during cross-
examination, for here he does not even have to employ a
question-and-answer format to convey information to the jury, but
instead can speak directly to them. In short, the lawyer is most
in control during closing argument, and to a somewhat lesser
extent on cross-examination, and he is least in control when
conducting direct examination.

The Rules encompassed in these materials will make

suggestions for conducting successful direct examination. Two
common themes will run throughout most of the Rules: First, try
to maintain as much control as possible during the examination,
and second, make the testimony understandable to the average
juror. This second theme is particularly important to the overall
outcome of the case. While the trial of any case comes down to a
matter of persuasion, i.e., each side trying to convince the jury
that its position is correct, one cannot overlook the fact that the
first step in the process of persuasion is comprehension. In other
words, a jury must first understand before they can believe. For
the expert witness that means that if the jurors do not first
comprehend his opinion, they will never reach the point of
believing it; instead they will simply reject it. Thus, many of
these Rules will deal with techniques that enhance juror
comprehension.

1. DON’T “SCRIPT” YOUR QUESTIONS, BUT USE AN OUTLINE

INSTEAD

As you sit down to begin planning your expert’s direct testimony,

do not begin by scripting your questions! Instead, you should
start by preparing a rough outline for the testimony. Work with
several drafts of the outline until you have a good, “tight” final
version.

Why is an outline preferred to a “script?” Here are some reasons.

First, it will subconsciously cause you to focus your attention on
the paper containing the script rather than the witness on the
stand. You need to be focused on the witness, not a yellow legal
pad! Second, a script inhibits the natural rhythm that you should
seek to develop with the witness. During good direct
examination, the lawyer engages the witness in conversation.
You strive to create a nice rhythm to the questioning, with good
back-and-forth between the two of you. A script robs the lawyer
of that rhythm and causes you to think about the next question
on your list as opposed to listening to the witness and asking the
obvious follow-up question to the comment he just made. Finally,
excessive reliance on a script creates a bad impression with the
jury. It not only takes some of the “spark” out of the direct
examination, but it suggests to the jury that you either lack
confidence in your case or do not know it well enough to avoid
using the script.
 One final point on the outline. Have it available to you while the
witness is on the stand, but keep your eyes and ears focused on
the witness and only glance periodically at your outline.
Following below are three examples of the format and type of
information to include in your outline. Each outline deals with a
different type of expert witness.

THE TREATING PHYSICIAN

A. Personal Background And Qualifications

1. Name, business address, etc.

2. Brief description of educational history
3. Medical specialty and board certification, where applicable
4. Mention noteworthy publications, teaching appointments,
professional positions, etc.

B. First Contact With Plaintiff

1. Date of first visit to doctor

2. History of accident given to doctor
3. Bodily injuries complained of
4. Anatomy background — At this point before the doctor proceeds
further, it may be helpful to digress momentarily and provide the
jury with a little medical background. For example, if the plaintiff
comes to the physician complaining of a back injury, it may be
useful to describe the anatomy of the spine.
5. Describe physical exam performed by physician — Be sure to
stress any “abnormal” findings and have physician explain
significance thereof
6. Diagnosis — Have doctor explain his conclusion — Also, be
prepared to provide necessary medical definitions to jury
7. Causation — If causation is relatively simple and self-evident,
have doctor relate injury to the accident after explaining
diagnosis. If causation is more complex, the subject may be
worthy of a separate segment unto itself.
8. Treatment Rendered — Have physician describe treatment
rendered and its purpose vis-a-vis plaintiff’s problems
 C. Causation

1. As noted above, if causation is particularly complicated, the

subject may be worthy of a segment of its own. In that case,
there usually is a more lengthy set of facts and/or assumptions
which underlie the doctor’s opinion on causation. Therefore, one
must lay out a neat chronology for the physician and then ask the
ultimate causation question.
2. Use simple direct language in framing opinion question, e.g.,
“Doctor, assuming those facts to be true, did the accident cause
the plaintiff’s injury?”
3. If you have several opinion questions which must be asked on
causation, don’t feel compelled to start each such question with
“Doctor, in your opinion to a reasonable degree of medical
certainty …” This can become cumbersome. Just ask the doctor
at the outset if all of his opinions are stated within a reasonable
degree of medical certainty.

D. Hospitalization

1. If the plaintiff has been placed in the hospital for treatment, that
event is generally worthy of a separate segment in the testimony
outline.
2. In reviewing hospitalization with the physician, be sure to point
out important diagnostic tests, operative procedures, etc.
3. Also, from a clinical standpoint, it may be helpful to refer to
nurses’ notes and/or medication sheets (if pain medications were
used) to highlight evidence of pain and suffering.

E. Follow-Up Office Visits

1. Generally, one should not review each and every office visit —
too boring for the jury.
2. Instead, have doctor indicate how long he followed the patient
and at what intervals.
3. Have doctor describe in general terms the plaintiff’s course
during that time, i.e., did the plaintiff generally get better, worse,
or stay the same?
4. Describe course of treatment in general terms including
medications or other modalities employed.

F. Proof Of Disability

1. Establish the length of time that the plaintiff was off work.
2. If not self-evident, describe the physical requirements of
plaintiff’s job for physician.
3. Ask for the physician’s opinion on disability, e.g., “Doctor, in your
opinion is it medically advisable for the plaintiff to engage in that
sort of work?”
4. Sometimes it is wise to avoid a question such as “Doctor, is the
plaintiff physically able to do his job?” Whether in theory he is
able to do it is different from whether the doctor thinks he should
do it.
5. What risks would the plaintiff face by working?

G. Prognosis

1. Ask the doctor what the future holds for the plaintiff in terms of
continuing complaints of pain, limitation of function and motion,
etc. Will they remain unchanged?
2. Establish the impact of continuing problems on future
employability.
3. Remember that “prognosis” testimony need not be stated within
the proverbial “reasonable degree of medical certainty.” See
Hamil v. Bashline, 392 A.2d 1280 at footnote 10.

LIABILITY EXPERT IN DEFECTIVE PRODUCT CASE

A. Personal Background And Qualifications

4. Name, business address, etc.

5. Brief description of educational history
6. Medical specialty and board certification where applicable
7. Mention noteworthy publications, teaching appointments,
professional positions, etc.

B. Review of Case History

8. Set out various materials reviewed by expert including
depositions, interrogatories, documents, etc. Use of leading
questions may facilitate examination here and should be
permitted.
9. Review the facts surrounding the accident. Some experts “know
the file” better than others. In those instances where you are
leery of having the expert relate in narrative form what happened
at the time of the accident, an alternative technique might be
employed.

For example, you may ask the expert a series of questions, each
preceded by “Did your review of the record indicate that x
happened here?” or “I want you to assume that x happened
here.” (See Rule 8 for further discussion of this point.)

C. Cause of Accident

10. In many product cases, the first order of business with

the expert is to establish the cause of the accident, i.e., what it
is about the product that caused the accident to occur.
11. To the extent an explanation of the mechanism of
injury is complicated, appropriate technical background should
first be provided to the jury. Use of demonstrative evidence may
be of assistance as well. (See Rules 6 and 7)

D. Opinion Regarding Defect

12. Assuming the expert has isolated the cause of the

accident, it is incumbent to establish that such cause was
related to a defect in the product.
13. Therefore, ask the expert if such a defect existed, and
if so, to describe it in general.
14. Have expert explain why he deems the condition to be
a “defect.” If governmental or institutional standards have been
violated, they should be referred to at this time.
15. In complicated cases, break the opinion down into its
various components.
16. Indicate what should have been done differently to
correct the defect.

E. Conclusion

17. Review the nature of the defect with the expert.

18. Show how the defect caused the accident.
19. Show how the purported changes would have avoided
accident.

LIABILITY EXPERT IN MEDICAL MALPRACTICE CASE

A. Personal Background And Qualifications

20. Name, business address, etc.

21. Brief description of educational history
22. Medical specialty and board certification, where
applicable
23. Mention noteworthy publications, teaching
appointments, professional positions, etc.

B. Anatomy Background

24. Oftentimes in a malpractice case, it is necessary to

provide the jury with medical background even before reviewing
the case history on a particular patient.
25. If so, have the doctor explain the involved body parts in
simple terms, perhaps enhancing discussion with the use of
models or diagrams.

C. Review of Case History

26. Take the doctor through a chronology of the patient’s

medical care as rendered by the defendant.
27. Provide some “help” to the physician in setting out the
chronology by using quasi-leading questions, e.g., “At some
point, doctor, did the plaintiff undergo surgery to remove the
stomach?” or “Does the hospital chart indicate that on May 1,
1986, defendant removed the plaintiff’s stomach?”
28. These questions should not be objected to since by
and large the “facts of treatment” (as opposed to opinions and
diagnoses) as contained within the hospital chart fit within the
business records exception to the hearsay rule and, therefore,
may generally be read directly into the record.
29. Go through the patient’s entire relevant period of
treatment before asking the doctor to express an opinion. In
other words, don’t “jump the gun” on the opinion questions until
you have first set out what the defendant did in this particular
case.

D. Statement of Opinion

30. After setting forth the relevant treatment rendered by

the defendant, ask the physician expert if he arrived at an
opinion regarding the quality of care rendered by the defendant.
31. Ask the doctor at the outset if all of the opinions he
will express are stated to a reasonable degree of medical
certainty. This will avoid your having to incorporate that “magic
language” in each subsequent question.
32. Have the physician expert describe the breach of the
standards of good practice committed by the defendant. In so
doing, one should generally avoid an open ended question to the
expert such as “How did the doctor’s care deviate from the
accepted standards of good practice?”
33. Instead, it seems advisable to ask a more pointed
question such as “Doctor, in your opinion was the defendant’s
failure to recognize the post-operative complication until nearly
four days after the stomach surgery consistent with accepted
standards of good practice?”
34. Have the physician expert explain the basis of the
opinion, i.e., why the defendant’s care was inappropriate, and
what the appropriate method of care would have been.

E. Causation

35. Establish that the breach from accepted standards of

good practice is what, in fact, caused harm to the plaintiff.
36. Note that in certain cases it may only be necessary to
prove that the defendant’s breach “increased the risk of harm” to
the plaintiff.

If so, this may be done by asking, “Doctor, if the defendant had

rendered the appropriate care as described by you, would the
plaintiff have had a greater chance of survival in this case?”

F. Conclusion

37. Review the cause of the plaintiff’s harm.

38. Repeat how the cause was attributable to the
substandard care rendered by the defendant.
39. Establish how appropriate care would have prevented
harm to the plaintiff.

2. PRESENT QUALIFICATIONS IN AN INTERESTING MANNER

Almost without fail, the introductory portions of your outline for

any expert witness will be devoted to drawing out his/her
qualifications. While there is some debate about the importance
of qualifications — there are those who believe good credentials
are quite important to a jury, and there are those who believe
jurors soon forget qualifications and focus on the substance of
the expert’s opinion — the expert’s qualifications are certainly
going to be established, so they may as well be presented in a
manner that will not put the jury to sleep. Prior to examining the
witness, spend some time looking over the curriculum vitae. Try
to pick out some interesting award, achievement or position held
by the expert to bring to the jury’s attention.

EXAMPLE:

Q. Doctor, I see from your resume that, during your first year of
medical school, you won the James T. Allan Award. What is the
James T. Allan Award?

A. The James T. Allan Award is an award given to a first-year

medical student for outstanding achievement in research.
Q. Who do you compete against for this award?

A. All of the other students in the first-year medical class.

Q. How many students were there in your first-year medical

class?

A. Roughly 200.

Q. What did you have to do in the competition?

A. You had to pick a medical issue of your choice and collect all
of the current research on that topic and analyze it. In doing the
analysis, you had to comment upon things such as the scientific
reliability of the conclusions in the research and offer a
viewpoint on what additional studies the medical profession
should do in order to improve healthcare in that area.

Q. Who judges the performance of the medical students?

A. There is a five-member committee made up of professors from

the medical school.

Q. In winning the James T. Allan Award, would I be correct in

assuming that you finished first in the competition among the
other 200 students?

A. Yes. As I said, the Allan Award is given for the outstanding

performance by a first-year medical student.

Expert witnesses often have faculty positions at universities.

Again, try to elicit that fact in an interesting fashion.

EXAMPLE:

Q. Dr. James, do you do consulting work on a full-time basis?

A. No. It really occupies a relatively small percentage of my time.

Q. What do you do on a full-time basis?

A. I am a full-tenured professor of chemical engineering at the
University of Pennsylvania.

Q. What do you do in that capacity?

A. Very simply, I teach engineering students who are working

toward a degree in chemical engineering.

Q. What sorts of courses do you teach?

A. I have taught probably 30-35 different courses during my

career. These courses cover a wide range of subjects in diverse
areas such as thermal dynamics, materials composition,
properties of fluids, and many, many more.

Q. What do you have to do to become a tenured professor of

chemical engineering?

A. Without going into a lot of detail, which I am sure is of little

interest to the jury, you basically have to prove to the
satisfaction of a committee of your peers that you are a good
teacher and a credible researcher.

Expert witnesses often include a long list of publications on their

curriculum vitae. You obviously do not have time during direct
examination to go through each publication. However, if there
are particular articles that the expert has written that have
direct application to the issue at hand, it is obviously helpful to
mention them. (Just a note of caution: Be certain ahead of time
that there is nothing in the article that can be used to impeach
the opinion that the expert is going to offer on direct.) If there is
no particular work that you want to highlight, but instead want to
merely establish the breadth of the expert’s publications, you
may consider a series of questions such as the following.

EXAMPLE:
Q. Dr. Simon, I note from your resume that you have written
numerous articles in the area of orthopedic surgery, is that
correct?

AYes.

Q. According to your bibliography, there are some 150 of these

articles?

A. Actually, I have two more that have been published since that
bibliography was printed, but yes, 150 is a fair approximation.

Q. Where are these articles published?

A. In various medical journals.

Q. Are these local medical journals or are they circulated

nationally?

A. Actually, they are circulated internationally to physicians and

medical libraries throughout the world.

Q. To your knowledge, do these journals typically employ

editorial boards to “screen” the quality of the articles before they
will publish them?

A. Oh, yes. That is standard operating procedure for the good

journals.

Q. Have you ever had an article rejected for publication?

A. No, sir.

Q. I also note from your resume that you have written parts of
some ten medical textbooks, is that correct?

A. Yes, I have authored or co-authored chapters in a variety of

textbooks on orthopedic surgery.
NOTE: At this point, it would probably be effective to display
some of those books for the jury, give the title of the book, and
ask the doctor what chapters he wrote in the book. Even more so
than most books, medical textbooks look impressive in front of a
jury, and it can certainly boost your witness’s esteem by
associating him/her with a textbook.

3. PROVIDE APPROPRIATE BACKGROUND BEFORE DISCUSSING

THE EXPERT’S OPINION

The focal point of any expert’s testimony is obviously the opinion

that he/she is going to offer and the basis for that opinion. It is
important, therefore, that the attorney conducting the direct
examination provide the proper “set up” or prelude for the
expert’s opinion. Generally, this means you should provide any
necessary technical or factual background before you start to
question the expert about his/her conclusions.

There are two principle reasons why it is important to provide the

appropriate background before discussing an expert’s opinions or
conclusions. First, and most importantly, the jurors will be in a
better position to understand what the expert is saying if they
first have an explanation of the scientific concepts and terms
that will apply to the case. (As noted in the Introduction, the first
step in the process of persuasion is comprehension.) Second, if
you provide this background information before the expert gets
into discussing the opinion in this particular case, you will avoid
having to constantly interrupt or take “off track” the expert in
order to explain terms or concepts that have just been
mentioned. By getting all of this explanation out of the way first,
your presentation of the expert’s opinion will be much less
cluttered and disjointed, all of which again helps the jury in
understanding what the expert is saying.

NOTE: As used in this context, “interrupt” refers to the expert

having to digress from a discussion of the opinion to go back and
establish general facts upon which the opinion is based. Thus, by
encouraging you to avoid “interrupting” the expert, it is not
meant to suggest that you have the expert use long narrative
answers. In fact, the contrary is preferable, and in that regard,
see Rule 9 concerning the advantages of using short precise
questions.

For example, here is an illustration of some of the background

information that may be elicited from a medical expert in a case
involving a patient who collapses and dies while undergoing a
treadmill test:

Q. Doctor, before we get into a discussion of Mr. Stein’s stress

test in which he collapsed, I wonder if you could take a few
minutes and explain a little of the cardiac terminology and
concepts you will be using throughout your testimony.

A. I will be happy to do so.

Q. First of all, could you explain just in very simple terms what is
meant by coronary artery disease?

A. Coronary artery disease refers to the build up of cholesterol

and other fats within an artery which causes that artery to
narrow.

Q. What happens as a result of the narrowing of that coronary

artery?

A. There is a decrease of blood supply to the areas of the heart

muscle serviced by that particular artery, and since blood is
what carries oxygen, a narrowing in these arteries eventually
means that less oxygen is going to get through to the heart.

Q. Is there a medical term that is used to refer to a decrease in

oxygen supplied to the heart muscle?

A. Yes, the term is cardiac ischemia.

Q. How does a treadmill test relate to the concept of ischemia?

A. A treadmill test is used to determine if a patient is suffering
from cardiac ischemia.

Q. What do you mean?

A. Well, the treadmill test requires a person to exercise at

increasingly vigorous levels. The more vigorously you exercise,
the more oxygen your heart requires. Most people with coronary
artery disease can tolerate sedentary activities without any
deficiency in their oxygen supply. However, as their activity
becomes more vigorous an
d their hearts demand increasing levels of oxygen, they may not
be able to satisfy that need. If so, we say they have cardiac
ischemia.

Q. How does the treadmill determine if someone has cardiac

ischemia?

A. While the person is exercising on the treadmill, they are

connected to a monitor which prints out a graph containing all
sorts of information about what is going on with the heart at any
given moment. One of the parts of that graph is called the ST
segment. If the heart gets to a point where it is not getting
enough oxygen, this ST segment begins to go in a downward
direction on the graph.

Q. Is there a physician or technician present during the treadmill

test?

A. Absolutely.

Q. Are they able to see this graph that is being printed out?

A. Yes.

Q. If there is a decrease or depression in this ST segment, is that

something of significance for them to note?
A. Absolutely. If the ST segment begins to depress or go down,
that means that the patient’s heart is experiencing some
ischemia, in other words, it is not getting enough oxygen to
support the level of activity being performed.

Q. If ST depression is significant, what should the physician or

technician do?

A. Stop the test.

Q. Why?

A. Because if the patient is required to keep exercising when

they are not getting enough oxygen, the ischemia can get even
worse to the point that it progresses to a myocardial infarction.

Q. What is a myocardial infarction?

A. Myocardium refers to the muscle of the heart. Infarction

means death of tissue. Therefore, myocardial infarction refers to
a death of muscle tissue.

Q. How does that relate to ischemia?

A. If you remember from what we said before, ischemia means

lack of oxygen supply to the heart muscle. If the ischemia gets
so bad that virtually no oxygen is getting through, then
eventually the muscle will infarct or die. When the heart muscle
infarcts, the result is commonly referred to as a heart attack.

The previous example dealt primarily with explaining certain

concepts and defining terms. Sometimes the background
provided for a medical expert’s testimony consists of an
explanation of the anatomy that is critical to the case. For
example, before having a physician testify about how a particular
cardiac bypass surgery was performed, the lawyer will first want
to spend some time explaining the various chambers of the heart,
their functions, and the vessels that run through them. As we
know from Rule 6, the lawyer would be wise to use a diagram of
the heart to accompany this part of the testimony.

In addition to providing technical background, in some cases it is

necessary to provide the factual background in order to properly
“set up” the expert’s opinion. In these instances, the background
is being provided not for the purpose of explaining difficult terms,
but rather for the second reason cited above, namely, to avoid
constantly interrupting the expert to go back and establish facts
that should have been established earlier. For example, assume
that you have a case where an expert is going to reconstruct the
speed of two vehicles involved in an automobile accident. In so
doing, you know that, among other things, the expert is going to
be relying on the layout of the roadway and a few landmarks
along the roadway. (Obviously, he/she is going to be relying on
many other things as well including skid marks, resting point of
vehicles, etc.) Here is an example of some factual background
you may elicit before discussing any of the facts pertinent to this
case.

EXAMPLE

Q. Dr. Wise, did you visit the scene of this accident?

A. Yes.

Q. How many lanes of travel are there on Salter Road?

A. One lane in each direction.

Q. What is the roadway surface?

A. It is a macadam surface.

Q. At some point along the berm for the eastbound lane, did you
find a mailbox bearing the name “McAllister?”
A. Yes. NOTE: You are establishing this fact because later on, in
offering the opinion, the expert is going to be relying upon the
location of this mailbox to establish some point.

Q. In the area where the mailbox is located, what is the

configuration and terrain of the road?

A. For approximately ½ mile before you get to the McAllister

mailbox, the road is straight and flat. For the next ½ mile beyond
the mailbox, the road is still flat, but there is a slight upgrade.

Q. While you were at the scene, did you take note of the
intersection of Salter Road and Atlas Road?

A. Yes.

Q. Did you measure the distance from the McAllister mailbox to

the center of that intersection?

A. Yes, I did. It was a distance of 684 feet.

By setting out this background ahead of time, you avoid the

situation where the expert starts to offer his opinion and makes
reference to the mailbox, and you have to interrupt him and say
“Excuse me Dr. Wise, did you mention a mailbox? Where is that
mailbox located? How far is that mailbox from the intersection of
Salter Road and Atlas?, etc.”

4. USE SIMPLE LANGUAGE, ANALOGIES, AND/OR EXAMPLES TO

EXPLAIN TECHNICAL TERMS OR CONCEPTS

One of the real dangers in presenting expert testimony is that the

lawyer or the expert will speak over the jurors’ heads. If you
present expert testimony that the jury simply does not
understand because of the language being employed, the
expert’s opinion is not going to be accepted no matter how well-
founded it may be.
Thus, as you go through the background for the expert’s
testimony as suggested in Rule 3 or when discussing the
opinions, it is incumbent upon the lawyer to use everyday
language, not legalese or the jargon of the scientific discipline
involved in the case. It will probably be even more difficult to get
your expert to refrain from using complex language, for the
expert is used to speaking to contemporaries in those terms and
is less sensitive to the jury’s predicament than the lawyer. What
do you do with the expert? The first thing to do is politely, yet
firmly, impress upon him/her in your pre-trial discussions the
importance of keeping the language simple. Second, during the
presentation of the testimony itself, make liberal use of simple
language synonyms for more complex terms and/or use common
examples or analogies to illustrate something.

For example, notice how this lawyer uses these techniques to

explain what a herniated disc is.

EXAMPLE

Q. Doctor, what are the components of the spinal column?

A. The spinal column is made up of a series of bones or vertebral

bodies stacked on top of one another and in between each bone
is a disc.

Q. By the way, when you say vertebral bodies, is that just

another word for the bony part of the spinal column?

A. Yes. If you run your hand down the center of your back, those
bony ridges or lumps that you feel are part of the vertebral
bodies.

Q. What are the discs made of?

A. They are composed of a relatively hard outer cartilage shell

known as the annulus fibrosis and a much softer gelatinous
center known as the nucleus pulposus.
Q. What is the purpose of the discs?

A. They permit flexion and extension of the spine, and they also
ease vertical load stresses on the spine.

Q. When you say that the discs permit flexion and extension, do
you mean they permit

us to bend forward and backward?

A. Yes.

Q. And when you say the discs permit our back to tolerate
vertical stress loading, do you mean the discs sort of operate as
shock absorbers when, for example, we jump up and down, run,
or just walk?

A. Yes.

Q. What is a herniated disc?

A. A herniated disc refers to a situation in which the annulus

fibrosis has degenerated to the point that the nucleus pulposus
extrudes through that outer shell.

Q. Would this be similar to a rubberized tire wearing thin and

permitting a part of the inner tube to bulge out through the tire’s
shell?

A. Yes, that would be a good example.

Here is another illustration of a lawyer using simple language and

analogies to explain heart bypass surgery.

EXAMPLE

Q. Doctor, what is cardiac bypass surgery?

A. It is a surgery in which we harvest donor “vessels” in order to

graft around cardiac vessels which have lost their patency and
thereby re-establish blood flow within the various chambers of
the heart.

Q. When you use the term vessels, do you mean blood vessels?

A. Yes.

Q. When you use the term “patent” do you simply mean clear and
unclogged?

A. Yes.

Q. To use a very simple analogy, is this surgery similar to a

motorist taking a detour around a traffic jam?

A. In a sense that is true.

Q. In my simple analogy, would the blood vessels that have lost

their patency or become clogged be analogous to the road that is
backed up with traffic?

A. Yes.

Q. And would the donor grafts be analogous to my finding a

detour and turning off the main road?

A. Yes.

Q. Now, does the donor graft or detour eventually reconnect

back to the main vessel or highway at a later point down stream?

A. Yes.

Here is an attorney explaining the scientific term “moment arm”

by reference to an easyto-understand example.

EXAMPLE

Q. Dr. Roman, you just used the term “moment arm.” What does
that mean?
A. Moment arm refers to the distance between a certain point on
an object and its center of gravity and the resultant physical
effects of that distance. As moment arm increases, so does
force.

Q. Can you give us a simple example or demonstration to

illustrate that point?

A. Certainly. If you had a pole that was 5 feet long and you
wanted to pick it up off the ground, the easiest place to lift it
from would be at its center gravity. In other words, you would
grasp the pole at a distance 2-1/2 feet from either end and lift it
up. If, however, you tried to lift the pole by grasping it at the very
end, it would be much harder because the length of the moment
arm — the distance between your hand and the end of the pole —
is now much greater and the downward force being exerted
throughout that distance is much greater. In effect, what you
have done by moving your hand to the end of the pole is to
increase the moment arm.

5. USE SHORT, PRECISE QUESTIONS

In addition to using simple language, the jury’s ability to

comprehend the expert’s testimony will be greatly enhanced if
you employ questions that are both short and precise. Lengthy
questions which incorporate multiple thoughts invite convoluted
responses which inevitably cause something to be lost in the
translation. The lawyer is much better off if the lengthy question
is broken down into separate short questions. Additionally, it
helps to make the question as precise as possible, i.e., the less
open-ended the better. Precise questions draw attention to the
specific points which you are trying to establish.

There are numerous examples of this technique in the vignettes

used to illustrate the other Rules described in these materials.

6. USE DEMONSTRATIVE EVIDENCE TO EXPLAIN A POINT

There is an old saying that “a picture is worth a thousand words.”
There is probably no

setting in which that old maxim applies more aptly than the
presentation of expert testimony. By definition, “expert”
testimony involves a subject matter which, in the judgment of the
court, is beyond the knowledge of a lay person. Thus, the lawyer
needs to do whatever he can to assist the jury in understanding
the expert’s testimony. Demonstrative evidence is one of the
primary tools the attorney has at his disposal in that regard. Prior
to putting an expert on the stand, the lawyer should always ask
himself whether there is some demonstrative evidence which will
assist the jury in understanding the expert’s testimony.

There are, of course, different categories of demonstrative

evidence. One category is “real” evidence such as the actual
product which failed in a §402A case. With this sort of evidence,
counsel must be mindful of issues such as authenticity and chain
of custody, i.e., you need to be able to prove that it is, in fact, the
actual product involved in the accident, and you need to
establish its condition at various points in time.

Another category of demonstrative evidence is not “real”

evidence, but evidence which has been specially prepared or
acquired by one of the parties for the purpose of illustrating
something at trial. Models, photos, diagrams, and anatomical
charts would be examples of this type of demonstrative
evidence.

Regardless of the type of demonstrative evidence, it is important

that it be presented properly to the jury if it is to be used to
maximum value. Make sure that the item is of sufficient size for
the jury to see. If, by its nature, the object is small, you may
consider the use of photo enlargements, an overhead projector,
or newer technology such as a Doar viewer (This is similar to an
overhead projector which projects a “real” image rather than a
transparency, i.e., it is just like taking a picture of an object and
projecting it in larger form on a screen or through a video
monitor.) In addition to having an item of evidence which is of
sufficient size, you need to be mindful of the jury’s line of vision
and make sure it is not obscured. For that reason, it is generally
suggested that, as much as possible, the lawyer should maintain
possession and control of the demonstrative aid rather than
putting it in the hands of the expert for an extended period of
time. Experts are often oblivious to the jury’s line of vision and,
as a result, they may cover up or block a portion of the evidence
while they are talking to the jury. The preferable practice is for
the lawyer to maintain greater control of the evidence and direct
the expert’s attention to relevant areas of the item.

Here is an example of a short demonstration being used to

illustrate a scientific concept that explains why planes can fly.

EXAMPLE

Q. Dr. Weller, what are the scientific principles that explain why
an airplane is able to fly?

A. The main one is something called Bernoulli’s Principle. It is

named after a Swiss

scientist, Bernoulli, who lived in the 1800s.

Q. What does Bernoulli’s Principle have to do with an airplane

flying?

A. Bernoulli’s Principle explains the major force involved in

flying, that force being “lift.”

Q. What exactly is Bernoulli’s Principle?

A. While it is rather complicated, in simplest terms, Bernoulli’s

Principle says that as the speed of a fluid such as air increases,
the pressure exerted by the air decreases.

Q. How does that apply to the flight of airplanes?

A. The spinning of a propeller causes air to be forced back over
the wings of the plane. For a reason that I will explain in a
minute, the air that travels over the top of the wing is moving
faster than the air beneath the wing. Because the air beneath the
wing is moving at a slower speed, it is exerting a greater
pressure. That greater pressure from beneath the wing pushes
up against the wing and “lifts” the plane into the air.

Q. Why does the air below the wing move more slowly than the
air above the wing?

A. Because t
he top surface of the wing is curved or “cambered” and the lower
surface of the wing is more flat, the air traveling above the wing
has to travel a greater distanced than the air below the wing. In
order to cover the greater distance in the same amount of time,
the air above the wing must travel faster than the air flowing on
the underside of the wing. Again, the slower moving air
underneath the wing is exerting greater pressure than the faster
moving air above the wing, and this creates the upward force, or
lift, which permits the plane to fly.

Q. Can you do a simple demonstration for us which illustrates

Bernoulli’s Principle?

A. Sure. Let us take a simple strip of paper, say 5 inches long and
1 inch wide. If I hold this piece of paper between my thumb and
index finger, it will lie limply over the rest of my other fingers.
However, as the paper lies on my fingers, notice that it is curved
somewhat like the upper surface of a wing. If I now start to blow
over the top of that piece of paper, notice how the strip of paper
now begins to rise off of my fingers. The strip of paper is being
“lifted” off my fingers for the same reason that the wings of an
airplane are lifted: There is greater pressure being exerted below
the strip than there is above it. That is a demonstration of
Bernoulli’s Principle.
Here is an example of a medical diagram being used to explain a
herniated disc:

EXAMPLE

Q. Doctor, you explained to us a minute ago what you mean by

the term “herniated disc.” Would this diagram, Plaintiff’s Exhibit
1, help you in explaining exactly what a herniated disc is?

A. Yes, actually that diagram is quite good.

Q. What does the diagram show?

A. The diagram is divided into two parts. The top part labeled “A”
shows a normal disc, whereas the bottom half of the diagram
labeled “B” shows a herniated disc.

Q. Just so that we can orient the jury, can you tell us from what
angle this diagram would be displaying the discs?

A. Yes, this diagram would show us what we would see if we

were looking straight down on top of the discs.

Q. Let us go back to the upper half of the diagram, part A. Tell us

what is shown there.

A. We see the two elements of the disc, the annulus fibrosis and
the nucleus pulposus, and we also see the surrounding
structures including the vertebral bodies and the nerve roots.

NOTE: At this point, as the doctor is explaining what is depicted

in certain areas on the diagram, either the witness or the
attorney should be using a pointer to designate the areas being
discussed.

Q. Is Part A of the diagram showing a normal or abnormal disc?

A. It is a normal disc.

Q. Why can you tell that it is normal?

A. Because if you look here, you can see that the full integrity of
the annulus fibrosis has been maintained and the nucleus
pulposus is fully contained within the hard outer shell.

Q. O.K. What is shown in Part B of the diagram?

A. Part B shows a herniated disc. If you compare Part A and Part

B there is an obvious difference. In Part B, you can see where the
annulus fibrosis has ruptured or herniated and there is the
nucleus pulposus extruding through that defect.

NOTE: The technique of comparing and/or contrasting two

pictures or diagrams is quite useful when you are trying to
illustrate an abnormal condition.

Q. Doctor, this area you pointed out as showing the rupture or

herniated disc material, would that be analogous to the blow-out
in a tire we were discussing earlier.

AYes.

Q. What is the significance of the nerve root in Part B of the

diagram?

A. The significance is that, as you can see in this part of the

diagram, the ruptured disc material is impinging upon or
compressing that nerve root. That explains why the patient has
such excruciating pain with a herniated disc.

7. USE DEMONSTRATIVE EVIDENCE TO PROVE A POINT

In the preceding Rule, we showed how demonstrative evidence is

used to illustrate or explain a point. This Rule goes one step
further and urges you to use demonstrative evidence in the form
of an experiment or re-enactment to prove a point.

An expert comes into court with a theory, an opinion, of what

happened in the case. He explains his theory in so many words
(hopefully not overly technical words) from the witness stand.
But even if he uses clear and concise language, his opinion is
still only that, his opinion. If you can use an experiment or re-
enactment to validate that opinion, you are well on your way to
winning the case.

During your pre-trial preparation, therefore, both you and your

expert should discuss whether there is some way to prove the
expert’s theory by preparing a re-enactment or demonstration.
Typically, these things will be videotaped prior to trial and played
for the jury in the courtroom. (You should be aware of the case
law which, in general, indicates that in order for an out-of-court
re-enactment or demonstration to be admissible it must be
performed under circumstances sufficiently similar to those
prevailing at the time of the accident, otherwise its prejudicial
impact outweighs its probative value. See, for example, Ligon v.
Middletown Area School District, 584 A.2d 376 (Pa. Cmwlth.
1990); Leonard v. Nichols Homeshield, Inc., 557 A.2d 743 (Pa.
Super. 1989).

Let us assume that we have product liability case in which the

plaintiff claims that she was injured by an exploding soft drink
bottle. The plaintiff contends that she was unpacking her
groceries in her kitchen and carrying a soft drink bottle from a
countertop to her refrigerator when it suddenly exploded and
sprayed shrapnel-like glass fragments into her eye. The bottle
manufacturer defends the case on the ground that the plaintiff is
careless and simply dropped the bottle. Plaintiff’s expert says
the bottle must have exploded while plaintiff was carrying it,
because if she dropped it to the floor, it would not have sprayed
slivers of glass high enough to reach her eye. Here is a
description of a recreation which might be used to validate that
opinion.

EXAMPLE

Q. Professor Williams, as I understand your testimony of a few

moments ago, you have indicated that, given the fracture
mechanics of this sort of glass, you do not believe that a bottle
of this sort, if it were to fracture upon impact with plaintiff’s
kitchen floor, could spray silvers of glass high enough to get into
plaintiff’s eye. Is that correct?

A. Yes sir, in essence that is my opinion.

Q. Professor Williams, in order to substantiate this opinion, have

you performed certain experiments in your laboratory?

A. Yes sir, I have.

Q. Could you describe in general what those experiments

consisted of?

A. Yes. Essentially what I did was this. I constructed a small

area of flooring in my laboratory identical to what I understood
the flooring in plaintiff’s home to be. By the way, that flooring
was wooden joists supported by a wood sub-floor with 1/4 inch
vinyl as the finished surface.

After constructing that small area of floor, I obtained several

bottles made from glass of the identical composition of the
bottle involved in this accident. I then utilized a lab assistant
who proceeded to intentionally drop several bottles on the floor.
The bottles were controlled in order to hit the floor just like
plaintiff’s did. By the use of a radar device, we were then able to
chart the path of each fragment of glass as it shattered and
sprayed in different directions. We were particularly interested in
how high above the floor the glass slivers would fly.

If memory serves me correctly, I believe we dropped fifty bottles,

and in none of the instances did glass reach more than three fe
et above floor level.

Q. Professor Williams, did you videotape the dropping of these

various bottles?

A. Yes, I did.
Q. Have you brought that videotape with you today?

A. Yes, I have.

Q. Your Honor, with the court’s permission, I would now like to

show that videotape to the jury and have Professor Williams
narrate the activity as it is shown.

An experiment is slightly different from a re-enactment. As the

word indicates, a reenactment seeks to recreate what happened
at the time of the accident. An experiment is slightly different in
that it does not seek to duplicate the conduct of one of the
parties, but seeks to prove a point by example. Here is an
experiment that might be used in an aviation case. Assume that
the plaintiff dies in the crash of a small airplane, and it is
subsequently discovered that there was ice in the fuel line which
blocked the flow of fuel, thereby starving the engine to the point
of failure. (NOTE: Airplane fuel tanks, which are housed in the
hollow interior of the wings, always have a certain amount of
water in them. Therefore, drains are installed at the low point in
the fuel tank so the pilot can drain the tanks during his pre-flight
inspection.) In this case, assume that it is the plaintiff’s theory
that because of the poor design of the tank, not all of the water
tracks down to the drain, but instead some of it becomes trapped
within the wings and then turns to ice when the plane is flown at
high (cooler) altitudes. The airplane manufacturer argues that
there are no “trap points” inside the tanks, and that if the pilot
properly drains the tanks, all of the water will come out. In order
to prove his point that the wing is defectively designed and has
“trap points” within it, the plaintiff’s expert describes the
following experiment that he performed.

EXAMPLE

Q. Dr. Weller, do I understand it to be your opinion that the

design of the wing in this aircraft creates “trap points” which
prevent the pilot from draining all of the water in the tanks?
A. That is my opinion.

Q. Do you understand that the manufacturer contends that there

are no “trap points” and that the pilot should be able to drain all
of the water from the tanks?

A. I understand that is what they say.

Q. Have you performed any experiments to try to prove your

theory that the wing has “trap points” and cannot be completely
drained?

A. Yes.

Q. What sort of experiment did you do?

A. I got a plane of the identical make, model and year as the one
involved in this accident. I took the plane into a hanger with full
tanks of gas on both sides, just as the plaintiff’s tanks were in
this case. I might add that the floor of the hanger was level, just
like the hanger where the plaintiff did the pre-flight inspection of
his plane. I then got an old one gallon plastic milk jug and filled it
with water. I dyed the water red with some every day food
coloring. After dying the water red, I opened up one of the fuel
tanks and poured the water in. I then waited about 2 hours, and I
then went to the sump (drain) and began to drain the tank.
Obviously, if the tank drains properly, I should get my full gallon
of red water back.

Q. Well, were you able to drain a full gallon out?

A. No.

Q. How much did you get?

A. A little bit shy of 3 quarts.

Q. Over what period of time did you drain the tank?

A. Over a period of about 90 minutes, which is much longer than
a pilot would ever drain a tank in real life.

Q. What do you mean?

A. The entire recommended pre-flight inspection on this plane

only takes about 20

minutes. You are lucky if three minutes of that is devoted to

draining water.

Q. Over what period of time did you drain water?

A. About 90 minutes.

Q. Did you measure all of the water that you were able to drain
out of the plane?

A. Yes. Every time I drained any water I put it in a measuring

device which was on the floor in the hanger.

Q. Dr. Weller, as you were conducting this experiment, did you

videotape it?

A. Yes. I had a video camera mounted on a tripod, and I filmed

the entire sequence of events from the time I filled the gallon jug
to pouring it in the tank, and then every attempt to drain the tank
over that 90 minute period.

Q. Did you bring that videotape with you today?

A. Yes, I did.

Q. Your Honor, with the court’s permission, I would like to play

the videotape of this experiment, and I would also ask to have
Dr. Weller narrate the videotape from the witness stand.

One note of caution about experiments or re-enactments:

Be extremely wary of doing them “live” in front of the jury
unless you know they are foolproof. There are few things in a
trial more damaging than a live experiment which backfires in
front of the jury. The ill-fated glove experiment in the O.J.
Simpson trial will forever represent the classic illustration of this
point.

8. MAKE LIBERAL USE OF HYPOTHETICAL QUESTIONS AND/OR

ASSUMPTIONS

The foundation for any expert’s opinion are the facts of the case.
Sometimes those facts are not disputed, and the opposing
experts merely draw different conclusions from the facts. In
other instances, there are disputed facts, and the expert
accepts a certain version as true. In either event, it must be
made clear to the jury what facts the expert is relying upon. How
does one lay out those facts for the jury? There are two ways to
do that. One way is to rely entirely upon the expert’s command of
the facts in the case, and let the expert spell them out for the
jury. Another way is for the attorney, in effect, to lay out those
facts by using hypothetical questions or asking the witness to
assume certain facts to be true.

It is strongly suggested that you rely upon the second of these

two alternatives. Why? There are several reasons. First, you do
not have to worry about the expert forgetting certain facts in the
case, and instead you can “spoon feed” him by incorporating the
facts in the hypothetical or the assumption. Suppose that you
have a complicated case, and you are concerned about whether
or not the expert is going to remember all of the facts of the
accident. While you may have a great deal of faith in this expert’s
technical knowledge and his ability to handle himself on cross-
examination, you are concerned that he does not study the file in
great detail and is quite proud of the fact that he can just “wing
it” on the witness stand. The danger with this sort of witness is
that he has not taken the time to learn all of the detail of the file
(or if he knew it at one time, he did not review the file sufficiently
before taking the witness stand). If you rely on him to recite the
facts and he forgets certain things, that is not only personally
embarrassing, but it will detract from the expert’s overall
credibility. Second, if you provide the facts to the expert in
hypothetical or assumption form, you maintain tighter control on
the entire testimony by laying out the facts in your own order
and at your own pace. Third, (and this is particularly true of
hypothetical questions) you get to neatly package your entire
theory of the case for the jury in the context of posing a question
to your expert.

To illustrate these points, let us consider a product liability case

involving a defect in a large crane. Assume that there are many
facts in dispute concerning exactly how the machine operated at
the time of the alleged failure, and your expert’s opinion is based
upon a certain version of those facts being true. Rather than
saying to the expert, “Mr. Expert, tell us your understanding
about what happened at the time of the accident,” (in which
event you
are totally relying on his knowledge of the file) you can lay the
facts out in this fashion.

EXAMPLE

Q. Mr. Bowman, did you review the various accident reports,

witness statements and depositions of the three workers who
were on the scene at the time this accident happened?

A. Yes.

Q. Did they describe in that material what they were doing with
the equipment in the

moments leading up to the accident?

A. Yes, they did.

Q. Did you understand that the crew started to work that morning
at around 7:00 a.m.?

A. Yes, I did.
Q. Did the materials you reviewed indicate that the workmen set
the crane in place on the berm of the road next to the building
under construction with all four outriggers fully extended and
touching the ground?

A. Yes.

NOTE: If the opponent objects on the basis that this is leading

the witness, (which technically speaking it is not) you can simply
rephrase each question and begin with “Mr. Bowman, let me ask
you to assume ….”

Q. After they got the outriggers set, did you understand that they
raised the level of the boom to a height of 110 feet?

A. Yes.

Q. Did you further understand that, at the point the crane was
raised 110 feet in the air, it was at an angle of approximately 80º.
In other words, about 10º short of perpendicular with the ground?

A. Yes.

Q. Is it your understanding that, after raising the crane to that

position, the workmen hoisted approximately 6-8 steel plates to
the work site on the building?

A. Yes.

Another way to accomplish the same thing is to ask a lengthy

hypothetical question such as the following:

EXAMPLE

“Mr. Bowman, I want you to assume that on the day of the

accident, the three workmen started their shift at approximately
7:00 a.m., and at that time they moved the crane into position on
the side of the road next to the building under construction. I
want you to further assume that, once having so positioned the
crane, they set all of the outriggers in their full extended and
locked position. You should assume that after setting the crane
in that fashion, they raised the boom of the crane to a height of
110 feet, at which point the boom was at an angle of

approximately 80º, or 10º short of perpendicular to the ground. I

want you to further assume that ….”

This technique may be similarly employed in a medical

malpractice case where a physician bases his opinion on the
facts reflected in the medical chart. Very often, both sides are
relying on the facts in the chart to be true, but their experts
simply draw different conclusions based on those facts. You are
concerned that your doctor, while knowledgeable in his area of
practice, will not remember all of the facts reflected in the chart.
Hence, you may question him as follows:

EXAMPLE

Q. Doctor, in analyzing this case, did you review the hospital

chart for Ms. Jones’ February, 1994, admission to Maple Grove
Hospital?

A. Yes, I did.

Q. Did you understand from those records that she initially came
to the emergency room at approximately 8:00 a.m. in the
morning?

A. Yes.

Q. Does the chart reflect that she was complaining about acute
back pain as well as urinary retention?

A. Yes.

Q. Does the chart also indicate that the onset of these symptoms
was rather sudden?
A. Yes, within the past 24 hours as I recall.

Q. Was she seen by a physician in the emergency room?

A. Yes, she was.

Q. Was that Dr. Babbitt?

A. Yes.

Q. Does the chart indicate that he performed a physical

examination of the patient?

A. Yes.

Q. With regard to her lower extremities, was a neurologic

evaluation done?

A. Yes.

Q. If you would refer to the hospital chart, can you tell us what
the results of that examination were?

A. Both extremities were depressed neurologically.

Q. What do you mean by “depressed?”

A. Her reflexes and sensation were less than what they should
have been.

Q. Is it your understanding that at some point she was sent for

lumbar spine x-rays?

A. Yes, that is my understanding.

Q. Can you turn to the radiology section of the chart and indicate
what the result of those lumbar films was?

A. Yes, the radiologist indicated that the x-ray was “definitely

suspicious for central disc herniation at L4-5.”
Q. At some after the x-rays were taken, was the patient admitted
to a regular room in the hospital?

A. Yes. She was admitted to a room at approximately 6:00 p.m.

Q. Dr. Sellers, I want you to assume that over the next 24 hours,
the nurses made the following observations or notations with
regard to this patient. At 9:00 p.m., “Patient states that both legs
are getting more weak and more numb.” At 1:00 a.m., “Patient
taken to bathroom, but unable to void. Catheter inserted. Patient
drained of 400 cc’s clear urine.” At 9:00 a.m., “Patient states, ‘I
feel like I have to move my bowels, but I can’t do it.'”

9. TAKE THE “STING” OUT OF ANTICIPATED ATTACKS ON

CREDIBILITY

Lawyers often cringe at the thought of the opposing counsel

cross-examining their expert about their whopping fees or their
courtroom “history.” Before giving an example of how you may
take the “sting” out of this issue, however, consider whether this
is a subject which you will need to address at all, i.e., is it likely
that the question of fees or prior litigation work will be brought
up by your opponent?

It is this author’s opinion that if experts on both sides are

equally susceptible to this line of cross, there is little to be
gained by “beating up” each other’s witness on this issue. Thus,
it would seem that the most likely situation in which your expert
is going to be cross-examined about these subjects would be
where there is a significant disparity between what your
opponent is paying his expert and what he guesses your expert
is being paid or how often his expert testifies as opposed to
yours.

Having noted the above, let us assume that you are in a situation
where you expect that the opponent will cross-examine on the
subject of fees. Try to defuse some of the impact of that cross
with questions such as this on direct:
EXAMPLE:

Q. Doctor, would I be correct in assuming that it has taken you

several hours to review the material pertinent to this case?

A. Most definitely.

Q. Do you have any idea how much time you have devoted to this
case?

A. Probably 15-20 hours over the past two years, and then the
time involved in traveling here today and spending time in court.

Q. Does the time you spend working on a case such as this take
time away from your regular affairs?

A. Certainly.

Q. Are you compensated for the time that you have taken away
from your regular practice to work on this case?

A. Yes, sir.

Q. How do you determine the basis for your charges?

A. I simply charge by the hour. So my fees would be based on

however much time I have devoted to the project, no more — no
less.

Q. What are you charging per hour for your time?

A. $250.00/hour.

Q. Would that be comparable to the hourly rate you would earn in

your regular practice?

A. Well, I do not really charge by the hour in my regular practice

because we simply do not do things that way in the medical
profession. Instead, we tend to charge a flat fee for
certain services. If I was to average things on an hourly basis, I
would say that it is quite similar. I might add that in many ways
this sort of work is more bothersome than my regular medical
affairs.

Q. What do you mean by that?

A. When I do work such as this, I tend to be at the mercy of

somebody else’s schedule. For example, there is a court deadline
by which I must complete my report or there is a court schedule
which dictates that I must be in court at a particular time. As you
can imagine, that can be quite disruptive to not only me, but my
staff and patients.

Here is one suggestion on taking the “sting” out of expert fees. In

certain circumstances you may be able to actually “turn the
tables” on your opponent. For example, suppose that in a medical
malpractice case your expert is charging an unusually high rate
of $500.00/hour. You are concerned with how that number may
sit with a jury, regardless of whether it is brought out on cross or
direct. To put this figure in perspective, however, you may want
to check and see what the defendant doctor charged for the
surgery which is at issue in the case. It would not be unusual to
determine that the fee for the surgery was $1,500. You may then
review the anesthesia record and discover that the surgery took
one hour and ten minutes to complete. When the defendant
himself is on the stand, you can now bring out the fact that he
charged, in effect, $1,500 per hour for his services, three times
what your expert is charging!

If you anticipate your expert being cross-examined on his

“history” of testifying on behalf of similar parties (plaintiff or
defense) and/or how much of his time he spends doing litigation
work, try to defuse some of that cross-examination with
questions such as the following on direct:

EXAMPLE:
Q. Dr. Walsh, do you regularly get involved in reviewing litigation
matters for plaintiffs?

A. Yes, I do.

Q. How often do you do it?

A. I almost always have at least a few cases that I am consulting

on at any given time.

Q. Do you enjoy this sort of work?

A. I enjoy it from an intellectual standpoint. I find it to be

challenging, and also it requires me to be up-to-date on the latest
trends and knowledge in my field. Also, to be quite frank with
you, I know there are many of my colleagues who may privately
admit that [there was a problem with the design of a product] or
[a doctor has made a mistake] but they are reluctant to step
forward and publicly state these opinions. I believe that if an
injury has occurred which should have been avoided, it is the
responsibility of someone in the profession to step forward and
say so.

Q. Dr. Walsh, do you usually testify on behalf of the plaintiff or

the defendant?

A. In those cases where I have offered testimony or written a

report, they have usually been on behalf of the plaintiff. The
reality is that it is the plaintiff who usually has contacted me,
although I am equally willing to review a matter for the
defendant when requested. I should point out, however, that in
the overwhelming majority of instances where I am contacted by
a plaintiff to review a matter, I tell them that I do not believe
they have a legitimate claim. It is only in the relatively small
percentage of cases where I believe the plaintiff has a legitimate
claim that I end up writing a report or testifying. So, when you
ask me on behalf of which party has most of my testimony been,
clearly it has been the plaintiff. However, in the overall scheme
of things, I usually end up informing the plaintiff I do not believe
they have a legitimate case.

10. SUMMARIZE THE OPINION AT THE END OF THE EXPERT’S

TESTIMONY

It is often said that a lawyer should strive to end direct or cross

of a witness on a high note. In regard to the expert witness, that
means taking a few minutes at the end to pose a series of brief
questions which capture the essence of his/her entire theory in
the case. To prepare for what these questions should be, try this
technique. Pretend you only had one minute to explain to
someone the conclusion(s) your expert has reached in a given
case. You will probably give a 60-second explanation which
incorporates two or three major points, perhaps one leading to
another. Try diagramming the three points like links in a chain.
Now, prepare a few summary questions which draw out each of
those three basic conclusions. (Remember, you do not need a lot
of detail or basis for the conclusions at this point because
presumably the expert has already provided that in the earlier
stages of direct testimony.) The more important thing here is to
simply leave the jury with a quick overview of what the expert
has said. In this way, when they go back to the jury room and one
juror asks of another, “What did the plaintiff’s expert say?”, the
other juror will be able to remind him of the overview you have
provided.

EXAMPLE

Q. Dr. Aaron, to summarize your testimony of the past few hours,

can you tell us again what, in your opinion, was the cause of
death of Mrs. Jones?

A. Diffuse peritonitis as a result of an ovarian abscess.

Q. When she was seen in the emergency room the evening before
her death, was the ovarian abscess discovered?
A. No.

Q. In your opinion, should it have been diagnosed?

A. Yes.

Q. What tests or examination should have been done that would

have led to the correct diagnosis?

A. A full pelvic exam should have been done that would have led
to the discovery of the ovarian abscess.

Q. In your opinion, was the failure to do a pelvic examination a

breach of the accepted standard of care?

A. Yes.

Q. Did this breach set in motion a series of events which led to

Mrs. Jones’ death?

A. Yes. If the abscess had been discovered, so too would the

peritonitis, and both of

them could have been drained before the infection got so bad
that the patient died.