Malpractice Consult: How attorneys successfully cross-examine expert witnesses

Kenton H. Steele, Esq

This column, part of our continuing series on the anatomy of a medical negligence trial, will focus on the cross-examination of an opposing party’s expert witness. In medical negligence cases, the testimony from each party’s retained expert is of paramount importance. In most medical negligence trials, the winning party will be the one whose expert offers the most credible and compelling testimony. As such, creating a reason for the jury to doubt testimony from an opposing party’s expert is a critical component of a successful trial strategy. Although there are many ways to approach the cross-examination of an expert, the objective is always the same—create doubt about the accuracy of the expert’s opinions. This column will provide an overview of common topics covered in a cross-examination of an expert witness and explain the difficulties faced by an attorney preparing for this phase of trial.

Expert witnesses present a seemingly impossible problem for trial attorneys. By way of example, in a trial involving an alleged misdiagnosis, an attorney with no medical training may be tasked with cross-examining an expert with decades of experience researching and treating the condition at issue. The problem is obvious. Because of the wide knowledge gap, challenging the expert’s conclusions or grasp of relevant concepts directly is usually a bad idea that will leave the attorney looking uninformed and overmatched. Even when there is an apparent error in an opposing expert’s conclusion or analysis, explaining the error is best accomplished through the testimony of the party’s own expert. Although a direct attack on an expert’s conclusions is unwise, this does not mean that cross-examination of experts is futile. Rather, when cross-examining an expert, attorneys can use carefully crafted questions to create uncertainty about the reliability of the expert’s testimony without overtly contesting the expertise of the witness.

One method an attorney can employ to sidestep the expert’s superior grasp of subject is challenging the expert’s process or the completeness of the expert’s review. Using the prior example of a misdiagnosis case, an opposing party’s expert may base opinions on a review of only the medical records related to the patient encounter when the diagnosis allegedly was missed. In this situation, on cross-examination, opposing counsel may confront the expert with a long list of prediagnosis and postdiagnosis records and compel the expert to acknowledge the records were not considered. Creating the appearance of an incomplete review will cast doubt on the accuracy of the expert’s conclusion without wading into a dispute over whether the records that were reviewed support the expert’s conclusion.

Similarly, effective cross-examination can create an implication that an expert’s opinions are motivated by bias or self-interest, rather than a neutral evaluation of the facts. This is frequently accomplished by highlighting the fact that experts are paid for time spent reviewing a case and testifying. It is not unusual for an expert to be paid tens of thousands of dollars for a single case. Cross-examining an opposing expert about the income generated in exchange for their testimony can be a powerful tool for disputing the credibility of the expert’s conclusions. The impact of this type of questioning can be amplified if the expert has been hired by the same attorney in multiple cases or is frequently hired by a particular type of litigant, either plaintiff or defendant. Upon learning that an expert generates significant income from providing testimony, a juror is likely to infer the expert is a “hired gun” who will say anything for the right price.

An effective cross-examination of an opposing party’s expert is one of many steps in the process of obtaining a favorable verdict. The concessions obtained from the opposing party’s expert witness, along with the favorable information obtained during the direct examination of the attorney’s own witnesses, are separate parts of the larger narrative that was previewed for the jury during opening statements and constructed as the trial progresses. The parties’ last opportunity to convince the jury to find in their favor is closing arguments, which will be the subject of the final column in this anatomy-of-a-trial series.