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As every trial attorney knows, there are many strategies for cross examining a witness. Among the most effective is confronting a witness with their previous deposition testimony. Nothing beats an opportunity to use their own words against them.

In order to get the most impact from this practice, a savvy litigator will read transcript passages or play audio/video excerpts from the witness’s deposition. An alternate technique—most effective when there is a lot of testimony—is showing a witness’s testimony on-screen using slides. Of course, as with any PowerPoint presentation, there are several things to consider when using this tool to cross examine a witness.

Tips for Witness Testimony Presentation

1. format the transcript text.

Rather than importing an image of the transcript page, consider copy/pasting or retyping the testimony into a slide. This will give you control over how large you make the text and can even allow you to emphasize certain words or statements that align with your case themes. In addition, most jurors sit 20-40 feet from the projection screen in the courtroom. A good rule of thumb is to use 20-point font type or larger.

2. USE BOLD FONT TYPE

By bolding questions within the transcript, jurors will more easily distinguish them from the witness’s answers to each question. Another tip is to stay away from unique fonts. While “French Script” might be a nice touch on a party invitation, it can be hard to read from the jury box.

3. ANIMATE EACH QUESTION AND ANSWER

If you are using PowerPoint or Key Note, consider adding animation to each question-and-answer text block. It’s natural for people to read ahead if there is more on the screen; by revealing each question and answer one-by-one, you will have a much better chance of holding the jurors’ attention. Effects like “appear,” “wipe,” or “fade” are all good options for this, but stay away from more flamboyant effects like “fly-in” or “zoom” since those are too distracting (and most judges will not allow that to go on for more than a few slides).

4. USE A PHOTO OF THE WITNESS

A photo of the witness will allow the jury to connect the testimony with the witness. If you didn’t videotape the witness, look for a picture on their company website or social media profiles. Obvious caveats apply here; you generally know what the court will allow and to what opposing counsel will object.

5. BE FLEXIBLE

Even though you have prepared all your testimony slides for the unexpected, consider having the entire transcript loaded in a trial presentation software (e.g., TrialDirector or Sanction) that allows you or your trial presentation consultant to jump to any portion of the transcript on the fly. It’s very possible that opposing counsel will argue that an answer is not complete, and the court might instruct you to continue on for several more lines of testimony.

In Conclusion

Visually displaying a witness’s deposition testimony during cross examination allows you to drive home the points most relevant to your arguments and case themes, and most salient to jurors you hope to influence. Following these five simple rules above will make that tactic even more effective in court.

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Expert witness testimony at trial: Practice and procedure

The effective presentation of liability and damages through expert testimony and opinion.

To obtain a jury’s verdict in favor of plaintiff, you must conduct exhaustive pre-trial preparation and then effectively present the evidence, including expert-opinion evidence. Your trial presentation is the culmination of your efforts that have been in progress on the case for years – from initial evaluation of the factual and legal issues, development and implementation of a well-considered discovery plan (often including motions to compel discovery from the defense), preparation of witnesses and documentary evidence, successful opposition of MSJ and MSA motions, assessment of evidentiary issues and preparation of well-crafted motions in limine.

In establishing liability, causation, and damages before the jury, the expert-witness testimony is among your most important tools. In many cases it will be the liability expert witnesses (i.e., accident reconstruction, biomechanical, automotive engineering, police practices, etc.) who will express to the jury their opinions – and more importantly, the evidentiary bases for those opinions – that comprise the essential reasons why the jury should find in plaintiff’s favor on liability. Thus, the presentation of liability expert testimony is often the vehicle for linking together the evidence and opinions upon which the jury will rely to reach their verdict in plaintiff’s favor.

This article focuses upon the practical, procedural and substantive elements required to present effective expert witness testimony at trial.

The role of the expert witness

Even at the outset of a new case, you should carefully consider the expert witnesses who may testify on behalf of plaintiff at trial. As your discovery plan begins to generate the evidence in support of plaintiff’s case, you appreciate that it will be the effective testimony and use of demonstrative evidence by your expert witnesses that will eventually ‘make or break’ your case before the jury. With this in mind, you should begin to consult with the experts you will rely upon very early in the case.

Bear in mind that expert testimony and opinion will be required whenever proof of an element of your cause of action, or an element of a defense, involves the determination of an issue that is outside the common experience of the trier of fact. (Evidence Code section 801.) For example, in Miller v. Los Angeles County Flood Control District (1973) 8 Cal.3d 689, an action for personal injury and wrongful death, plaintiffs sued home builder Noble Manors and the Los Angeles County Flood Control District after floodwaters decimated their home on Country Club Drive, in Burbank, causing severe injuries to Mr. Miller and drowning his wife.

At the close of plaintiffs’ case-in-chief, the trial court granted nonsuit in favor of defendant Noble Manors because the plaintiffs had failed to present any expert testimony in support of their causes for negligence and strict liability against the home builder. This ruling was affirmed by the California Supreme Court: “If the matter in issue is one within the knowledge of experts only and not within the common knowledge of laymen, it is necessary for the plaintiff to introduce expert opinion evidence in order to establish a prima facie case. ¶ Applying the above principles to the instant case we are satisfied that it was not for non-expert minds to determine whether Noble Manors failed to exercise due care in the construction of the home. Building homes is a complicated activity.” ( Id ., at 8 Cal.3d 702.)

Expert opinion is necessary in medical or legal-malpractice cases to establish that defendant’s conduct fell below the standard of care in the community, as these matters are not within the common knowledge of the jury. ( Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 1001; Lysick v. Walcom (1968) 258 Cal.App.2d 136, 156.) In medical malpractice cases expert testimony on the standard of care will be excused only under circumstances – usually in res ipsa loquitor cases – in which the malpractice is ‘blatantly obvious.’ ( Lawless v. Calaway (1944) 24 Cal.2d 81, 86 [“[S]cientific enlightenment is not essential for the determination of an obvious fact”].)

Whenever an issue in controversy is beyond common lay knowledge, a plaintiff who fails to present competent expert testimony on the issue fails to establish a prima facie case and a judgment of nonsuit or dismissal is proper. ( Stephen v. Ford Motor Company (2005) 134 Cal.App.4th 1363, 1373-1374; Gotshall v. Daley (2002) 96 Cal.App.4th 479, 484.)

It has repeatedly been held that whenever the matter is beyond common lay knowledge, expert witness opinion is required on the essential issue of causation. ( Garbell v. Conejo Hardwoods, Inc. (2011) 193 Cal.App.4th 1563, 1569-1570 [whether cigarette in garbage can cause a house fire]; Miranda v. Bomel Construction Company (2010) 187 Cal.App.4th 1326, 1336 [whether plaintiff’s Valley Fever was caused by construction debris on adjacent property]; Stephen v. Ford Motor Company, supra , at 134 Cal.App.4th 1373-1374 [whether a vehicle design defect caused loss of control after a tire detread]; Visueta v. General Motors Corp . (1991) 234 Cal.App.3d 1609, 1616 [whether vehicle design defect caused accident].)

It bears emphasis that when an element of a defense is beyond common lay knowledge, the defendant must either advance expert opinion in support of the defense or waive the defense entirely. For example, when a defendant asserts a ‘seat belt defense’ the defendant must establish by expert testimony the nature and extent of injuries plaintiff would have sustained if plaintiff had used a seat belt. In the absence of such expert testimony, defendant may not assert a ‘seat belt defense.’ ( Truman v. Vargas (1969) 275 Cal.App.2d 976, 982-984; Franklin v. Gibson (1982) 138 Cal.App.3d 340, 343.)

In those cases in which expert-witness testimony is not required to make a prima facie case, expert opinion is still “permissible” whenever the subject matter is sufficiently beyond lay experience that it will “assist the trier of fact” in deciding the issue in controversy. (Evid. Code § 801; Campbell v. General Motors Corp. (1982) 32 Cal.3d 112, 125; PM Group, Inc. v. Stewart (2007) 154 CalApp.4th 55, 63-64.) ‘Sufficiently beyond lay experience’ to make expert opinion testimony admissible does not require that the trier of fact be entirely ignorant of the subject matter of the opinion. The testimony will be excluded only when it would add nothing to the jury’s “common fund of information.” ( People v. McDonald (1984) 37 Cal.3d 351, 367, overruled on other grounds in People v. Mendoza (2000) 23 Cal.4th 896, 914; McCleery v. City of Bakersfield (1985) 170 Cal.App.3d 1959, 1067-1068.)

Against this background, it is the rare case that will not include expert witness testimony during the liability, causation and damages portions of plaintiff’s case-in-chief at trial.

Selection and payment of expert witnesses: a practical guide

• When to select your designated experts

In most cases, a demand for exchange of expert witness information must be served no later than 70 days before the initial trial date (Code Civ. Proc., § 2034.220), and mutual exchange of expert witness information must occur 50 days before the initial trial date. ( Id., § 2034.230(b).

Until an expert witness has been designated as an expert who will testify at trial, the identity and opinions of the expert are protected by the attorney work-product rule and are not discoverable. ( Hernandez v. Superior Court (2003) 112 Cal.App.4th 285, 297.) “The opinions of experts who have not been designated as trial witnesses are protected by the attorney work-product rule.” ( Williamson v. Superior Court (1978) 21 Cal.3d 829, 834-835). Their identity also remains privileged until they are designated as trial witnesses. ( Schreiber v. Estate of Kiser (1999) 22 Cal.4th 31, 37).

Of course, there are circumstances in which retention and disclosure of an expert witness will become necessary well in advance of the time for formal exchange of expert witness information under Code of Civil Procedure sections 2034.220 and 2034.230(b).

For example, a defense MSJ or MSA – often brought well in advance of the time for exchange of expert witness information – will often be supported by the declaration of a defense expert witness. This will give you the opportunity to depose the defense expert declarant to properly oppose the defense motion, and will almost certainly require that you also retain a plaintiff expert to prepare a declaration in support of your opposition. Under such circumstances, as in all cases, you will need to provide your expert witness with all discovery and other information that may be necessary to obtain a fully informed opinion and counter-declaration from your expert witness.

In all other cases expert witnesses should be retained, and provided with all necessary discovery and other evidence, within 90 to 100 days before the first trial date (i.e., 40 to 50 days prior to service of plaintiff’s Designation of Expert Witnesses). This will allow you ample time to become familiar with the expert witnesses you intend to use at trial, and with their initial opinions concerning the case, well before you prepare and serve your Designation of Expert Witnesses 50 days before trial. By giving yourself this ‘lead time’ you will also have an opportunity to discern any problems that may exist with any of your retained expert witnesses, or any gaps in the discovery or evidence the experts will need to form and present their opinions at trial.

Is it worth hiring the experts?

At this stage, immediately before hiring retained expert witnesses, it is good practice to evaluate the settlement and verdict potential of the case. Your case is about to become significantly more expensive to prosecute through jury verdict. This is the moment to properly evaluate and handle the risks in a manner that will maximize the rewards in this particular case. Substantial discovery and evaluation of the issues have already been done. An objective and realistic assessment of the positive and negative aspects of your case is necessary at this stage. Every case is, of course, different. Is this a case in which you are confident of a plaintiff verdict on liability and a major verdict in favor of plaintiff on damages? In such cases it sometimes occurs that the defense has simply misread liability and damages, and a highly successful outcome for plaintiff at trial is probable. In a case such as this you can confidently retain and prepare all necessary expert witnesses to maximize plaintiff’s recovery before the jury.

But what of the case in which liability may be clear but plaintiff’s injuries have fully resolved and the verdict potential on damages is limited? In such a case will your client really benefit from incurring the substantial expert witness fees required to present expert opinions on the liability and damages issues at trial?

In other cases your client’s testimony at deposition may have already been impeached by other accidents or incidents the client refused to disclose to you, thus rendering plaintiff an easy target for devastating impeachment at trial. As we all know, during the progression of any given case a myriad of evidentiary or factual issues may emerge that could drive the jury toward a defense verdict on liability, or severely constrict your client’s recovery of damages. In such cases you should be very reluctant to incur expert witness fees that will not ultimately influence the outcome before the jury. Simply stated, if the jury has good reason to disfavor your client and his or her case, the most brilliant expert-witness presentation may be appreciated by the jury but will not prevent a result adverse to plaintiff.

The time for an honest assessment of the case is before the substantial costs of retaining expert witnesses have been incurred. If the value of the case does not warrant the expenditure of expert witness fees, then you should carefully consider efforts to resolve the case by settlement or divert the case to binding arbitration where you can better control and limit your expert fees and costs.

• Give your expert witness the help he or she needs

Once you have retained an expert witness, give the expert copies of all discovery and evidence that must be reviewed in order to formulate an opinion.

If there is a discovery response or deposition testimony that is problematic to your case, then make sure that this information is given to your expert for consideration. It makes no sense to withhold information from your expert witness. Doing so only leads to your expert being impeached for not having considered information that is adverse to plaintiff and which very possibly contradicts the opinions your expert has expressed. To retain and pay an expert witness, while simultaneously facilitating impeachment of your own expert, leads to a monumental waste of time and money.

• Review all potential opinions, especially adverse ones

As the expert’s work progresses, it is imperative that you discuss with the expert each of the opinions being formulated and the evidentiary bases for each opinion. At this stage it is often helpful to have your expert prepare a working draft of a bullet-point outline that reflects each opinion and the evidentiary basis for that opinion.

In unusual cases an expert retained on behalf of plaintiff may insist upon giving an opinion that is adverse to plaintiff’s position. As long as the expert has not been deposed, that expert may be de-designated and treated as a consultant whose opinions are protected by the attorney work-product privilege. ( County of Los Angeles v. Superior Court (1990) 222 Cal.App.3d 647, 656 [“a party may, indeed, enjoy the right to withdraw an expert witness at any time prior to disclosure of that witness’ proposed testimony… and thereby re-establish the work-product privilege”].) Needless to say, it is important that any problematic opinions by a retained expert be identified in time to avoid designating that expert as a retained expert or, at least, in time to dedesignate the expert before they are deposed.

Designation of retained and non-retained expert witnesses

In regard to the retained experts set forth in your Designation of Expert Witnesses, your declaration must, among other things, provide a “…brief narrative statement of the general substance of the testimony the expert is expected to give.” (Code Civ. Proc., § 2034.260(c)(1).)

For example, the “general substance of the testimony” of a retained liability expert in a product liability action might be set forth as follows:

Mr. _______ will discuss liability issues as they relate to his knowledge, background, experience, education, training and evaluation of the evidence in this case. These areas include brake and throttle system design, testing, warnings, and alternate designs. Mr. ________will discuss the opinions of any other experts, plaintiff or defense, including responding to Defendants’ experts’ opinions, and will testify to any related issue as it relates to the facts of this case and his knowledge and expertise.

The “general substance of the testimony” of a retained medical expert may include the following:

Dr. ________will discuss damages issues as they relate to his knowledge, background, experience, education, training and evaluation of the evidence in this case. These areas include endocrinology and internal medicine. Dr. ________will discuss the opinions of any other experts, plaintiff or defense, including responding to Defendants’ experts’ opinions, and will testify to any related issue as it relates to the facts of this case and his knowledge and expertise.

Of course, as to each retained expert set forth in your Designation of Expert Witnesses, your declaration must also include a brief narrative statement of his or her general qualifications, a representation that the retained expert has agreed to testify at trial, a representation that the retained expert will be sufficiently familiar with the case to give a meaningful deposition concerning his or her specific testimony that the expert is expected to give at trial, and the expert’s hourly and daily fee for giving deposition testimony, and for consulting with the retaining attorney. (Code Civ. Proc., §§ 2034.260(c)(1) through (5).

All non-retained expert witnesses who may be called by plaintiff to give expert opinions at trial, such as treating physicians, must also be listed in the Designation of Expert Witnesses, although no declaration is required for non-retained experts.

Significantly, a treating physician testifying as a non-retained expert can properly give opinions at trial upon matters that include causation of the plaintiff’s injuries. ( Schreiber v. Estate of Kiser (1999) 22 Cal.4th 31, 39.) Ochoa v. Dorado (2014) 228 Cal.App.4th 120, 139 [“A treating physician is a percipient expert, but that does not mean that his testimony is limited to only personal observations. Rather, like any other expert, he may provide both fact and opinion testimony”].)

Accordingly, in every case it is advisable to know in advance the testimony that each of plaintiff’s treating physicians will give in regard to plaintiff’s injuries, diagnoses, prognoses concerning residual deficits, and causation. In some cases your personal interviews with plaintiff’s treating physicians may be similar to an audition through which you will select the treating physician who can best convey to the jury the testimony and opinions that will be most compelling to the jury. A jury will often place more weight upon the testimony of a treating physician who actually diagnosed and treated plaintiff than it will a retained medical expert who encountered plaintiff only for litigation purposes.

Preparing experts for deposition 

To maximize the persuasive impact that your expert witness will have on the jury, you have selected experts who have jury appeal, an ability to ‘connect’ with the jury by explaining concepts in commonly understood and ‘teachable’ language, and forensic experience enabling them to withstand vigorous cross-examination.

The effective presentation of your expert witness testimony begins at deposition, for which considerable preparation time is necessary.

Section 2034.260(c)(4) expressly requires that, at deposition, your expert witness provide “…specific testimony, including any opinion and its basis, that the expert is expected to give at trial.” To enable your expert to maximize the effective presentation of their opinions at deposition, the following factors are essential:

• Meet with your expert witness (multiple times if necessary) to assure that your expert articulates to you, and that you thoroughly understand, every opinion that your expert will give during deposition, and the bases for each opinion. This collaborative effort is critical, and it underscores that you and your expert are working together as a team to maximize the benefit of the expert’s testimony to your client. In some cases the nuance of how an opinion is expressed may be extremely important. In many cases you will find yourself pointing out to your expert additional facts that support an opinion your expert will give. There may be problematic deposition testimony or other evidence that your expert will certainly need to address. This is the time to strategize the precise manner in which your expert will distinguish or otherwise ‘deal with’ such evidence. Simply stated, prior to the deposition of your expert, all matters concerning your expert’s opinions and their bases, along with any potentially harmful evidence, must be clearly understood and addressed between you and your expert.
• Review with the expert all materials in the expert’s file that will be produced at deposition. This will not only reacquaint you and your expert with the key evidence in support of your expert’s opinions, it will also allow the expert to make a judgment about which materials should properly be in his or her file. Materials in your expert’s file that are wholly unrelated to the issues in controversy (e.g., your expert’s Ph.D. dissertation on an entirely unrelated topic), or that were mistakenly placed in the file (e.g., an invitation to the piano recital of your expert’s child), or that are non-responsive to the request for production of documents at deposition, will needlessly create confusion and waste time.
• Discuss with your expert the attorneys, represented parties and matters at issue between other parties who will be represented at the deposition. In some cases, a co-defendant party will be asserting fault on the part of the defendant who has scheduled your expert’s deposition. It will assist your expert to know in advance whether he or she is being interrogated by an attorney who is adverse to plaintiff, or by an attorney whose client has a common interest with plaintiff on some issues. Make certain your expert is informed about who the ‘players’ are and what their motivations will be during the deposition.
• It is not unusual that your expert will have been deposed on prior occasions by the same defense attorney, in other cases, and is thus familiar with the defense attorney’s style and interrogation techniques during deposition. When your expert does not have prior experience with the defense attorneys, prepare your expert for the style and techniques that he or she can expect during deposition:

Does the defense attorney adhere religiously to a pre-packaged outline of questions? Is the style of the defense attorney needlessly confrontational in an effort to intimidate? Does the defense attorney ‘load’ questions with hypothetical ‘facts’ that are not, and never will be, in the record? Can your expert anticipate that you will need to make numerous objections to the form of defense counsel’s questions, and that defense counsel will become argumentative during the deposition?

It will be helpful to discuss these matters with your expert in advance of the deposition.

It is probable that your expert’s deposition will be videotaped, and this should be discussed with your expert. Obviously, your expert will need to dress and present themselves in a professional manner. If the defense is videotaping the deposition, then it is the hope of the defense that your expert will display anger or argumentative behavior during the deposition, providing to the defense a video clip that the defense will show to the jury during opening statement. Make certain your expert knows, prior to any videotaped deposition, that the defense attorney may attempt to ‘bait’ them into an expression of anger, or into argumentative or untoward behavior for precisely that purpose. Your expert will then be well armed to avoid those traps at all costs.

The time spent preparing your expert for deposition will always pay dividends. This is the time to distill and refine the precise opinions that your expert will give at trial, as well as the precise evidence that will provide the bases for your expert’s opinions. In some cases, the deposition testimony of your well-prepared expert will itself generate a defense offer of settlement that may lead to resolving the case prior to trial. In every case, the preparation and presentation of your expert’s testimony at deposition will be the essential foundation for the testimony that your expert will give before the jury at trial.

Preparing your expert for trial

The preparation of your expert’s testimony for trial always involves certain fundamental steps that cannot be overlooked. Your expert will need to re-read the transcript of his or her deposition, perhaps several times, to ensure that trial testimony is not needlessly impeached from the deposition transcript. Also, the full array of evidence will be considered so that the most illustrative photographs, test results, graphs, and demonstrative evidence can be selected to best enhance and support your expert’s opinions and testimony.

Before developing a strategy to prepare your expert’s trial testimony, it is important to consider the factors that will influence how your expert witness will be perceived by the jury. Our debriefing of jurors post-verdict, as well as studies of the jury deliberation process, disclose that many jurors assume that both sides can buy ‘hired gun’ experts to give any opinion that will support the side that hired them. This tends to lead, in the minds of jurors, to a battle of paid experts in which the plaintiff and defense expert witnesses essentially cancel out one another. The net result of this dynamic is that after an enormous amount of time and expense devoted to expert witness testimony, neither the plaintiff nor the defense experts drive the ultimate verdict of the jury.

The question is how to best prepare and present the testimony of your expert witnesses in this rather cynical environment. By implementing each of the following approaches you can greatly enhance the probability that the jury will find the testimony of your expert witness to be credible and persuasive.

• During voir dire and opening statement don’t refer to your “expert witness,” which the jurors hear as the “guy we hired to testify.” Instead, use descriptive terms that enhance objectivity: “To test this theory, we consulted with an outside engineer who has years of training and experience in reconstructing how an accident took place. That engineer, Mr. ___________, will come to court during trial to explain to you his findings and conclusions.” Then, at least, the jury’s first impression of your expert is cast in terms of outside objectivity.
• On one hand, jurors are skeptical of the “battle of the experts.” On the other hand, the jury truly does appreciate hearing the testimony of a highly educated and well-informed witness who can credibly explain to them the complicated or technical aspects of the case in a way that makes sense to them. From this standpoint your expert is a “teacher” who will explain to the jury his or her findings in language that is commonly understood by all jurors.
• By the time you are preparing your expert’s trial testimony, all of the demonstrative evidence (i.e., carefully selected blow-ups of photographs, or of select pages of medical or other records) is ready for reference to be weaved into your questions and the answers of your expert. During preparation you will role play the direct examination with your expert so that his or her opinions, and the evidentiary bases for the opinions, are seamlessly presented to the jury in the most efficient and effective manner possible.
• The answers of your expert on direct examination should be precisely responsive to the question, and should not be in the form of lengthy narratives that go vastly outside the call of the question. There is nothing worse than having your expert bury a key opinion under a mountain of pointless narrative. Furthermore, an expert who rambles well beyond the scope of the question communicates to the jury that he or she is attempting to give vacant quantity instead of quality – a practice the jury will soon read as desperate and non-credible.
• To keep the attention of the jury, and to maximize the persuasive power of his or her testimony, your expert will need to be prepared to: (1) give answers that are fully responsive and informative in direct response to the call of the question (but not beyond); (2) speak in ‘everyman’ terms that will be readily understood by the jurors; (3) be fluent in responding to your questions that direct your expert with some frequency to exhibits or demonstrative evidence (i.e., new data) that will keep the attention of the jury; (4) speak in a tone that is calmly confident and authoritative; (5) look from time to time to the jury to speak directly to the jurors.
• The ultimate objective of your expert witness is to ‘teach’ the jury in everyday language the reasons why each of his or her opinions is well supported by the evidence, and to do so in a way that projects knowledge, confidence, trustworthiness and likability.
• In every case the defense will present expert opinions that are contrary to those of your expert. Thus, on direct examination your expert must be prepared to testify that he or she has considered each of the pertinent defense opinions, and to explain to the jury why the defense opinions are flawed and untrustworthy.
• In addition, of course, you must prepare your expert for a vigorous cross-examination by the defense at trial. During cross-examination your expert must never become emotional, angry or argumentative with defense counsel. In preparation for trial, encourage your expert to always remain direct, polite, confident and steadfast in his or her opinions during cross-examination. The polite confidence projected by an expert during cross-examination is seen by jurors as the witness being confident because he or she is correct.

Jury trials are won by placing small plusses on top of small plusses from voir dire through closing argument and, at the end of the trial, the plusses in favor of your client will hopefully outweigh the minuses and you will prevail before the jury.

There is no question that your presentation of expert testimony to the jury offers the opportunity to gain many critical plusses in favor of your client, potentially so many plusses that they cannot possibly be overcome by the defense.

Editor’s Note: This article was first presented at the 2016 CAALA CONVENTION in Las Vegas.

Garo Mardirossian

Garo Mardirossian is the founder of a five-attorney law firm in West Los Angeles that specializes in tort cases involving catastrophic injuries. In September, 2012, Mr. Mardirossian was recognized by the Daily Journal as one of the top 100 California Lawyers. In January, 2010, Mr. Mardirossian was installed as President of CAALA. In 2000, he was voted CAALA’s Trial Lawyer of the Year and has been a CAALA member for 30 years. Mr. Mardirossian cemented his reputation as a prominent plaintiff’s attorney by obtaining many landmark jury verdicts on behalf of his clients in civil rights, product liability, premises liability, and general negligence cases.

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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

• Name, business address, etc.
• Brief description of educational history
• Medical specialty and board certification, where applicable
• Mention noteworthy publications, teaching appointments, professional positions, etc.

B. First Contact With Plaintiff

• Date of first visit to doctor
• History of accident given to doctor
• Bodily injuries complained of
• 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.
• Describe physical exam performed by physician — Be sure to stress any “abnormal” findings and have physician explain significance thereof
• Diagnosis — Have doctor explain his conclusion — Also, be prepared to provide necessary medical definitions to jury
• 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.
• Treatment Rendered — Have physician describe treatment rendered and its purpose vis-a-vis plaintiff’s problems

C. Causation

• 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.
• 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?”
• 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

• If the plaintiff has been placed in the hospital for treatment, that event is generally worthy of a separate segment in the testimony outline.
• In reviewing hospitalization with the physician, be sure to point out important diagnostic tests, operative procedures, etc.
• 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

• Generally, one should not review each and every office visit — too boring for the jury.
• Instead, have doctor indicate how long he followed the patient and at what intervals.
• 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?
• Describe course of treatment in general terms including medications or other modalities employed.

F. Proof Of Disability

• Establish the length of time that the plaintiff was off work.
• If not self-evident, describe the physical requirements of plaintiff’s job for physician.
• 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?”
• 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.
• What risks would the plaintiff face by working?

G. Prognosis

• 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?
• Establish the impact of continuing problems on future employability.
• 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

• Medical specialty and board certification where applicable

B. Review of Case History

• Set out various materials reviewed by expert including depositions, interrogatories, documents, etc. Use of leading questions may facilitate examination here and should be permitted.
• 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

• 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.
• 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

• 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.
• Therefore, ask the expert if such a defect existed, and if so, to describe it in general.
• 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.
• In complicated cases, break the opinion down into its various components.
• Indicate what should have been done differently to correct the defect.

E. Conclusion

• Review the nature of the defect with the expert.
• Show how the defect caused the accident.
• Show how the purported changes would have avoided accident.

LIABILITY EXPERT IN MEDICAL MALPRACTICE CASE

B. Anatomy Background

• 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.
• 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

• Take the doctor through a chronology of the patient’s medical care as rendered by the defendant.
• 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?”
• 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.
• 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

• 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.
• 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.
• 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?”
• 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?”
• 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

• Establish that the breach from accepted standards of good practice is what, in fact, caused harm to the plaintiff.
• 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

• Review the cause of the plaintiff’s harm.
• Repeat how the cause was attributable to the substandard care rendered by the defendant.
• 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.

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.

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.

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

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?

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.

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.

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

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?

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.

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?

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?

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.

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?

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

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?

Q. And would the donor grafts be analogous to my finding a detour and turning off the main road?

Q. Now, does the donor graft or detour eventually reconnect back to the main vessel or highway at a later point down stream?

Here is an attorney explaining the scientific term “moment arm” by reference to an easy­to-understand 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.

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:

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.

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.

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.

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?

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?

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.

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?

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.

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?

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.?

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?

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?

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?

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?

Another way to accomplish the same thing is to ask a lengthy hypothetical question such as the following:

“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:

Q. Doctor, in analyzing this case, did you review the hospital chart for Ms. Jones’ February, 1994, admission to Maple Grove Hospital?

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

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

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?

Q. Does the chart indicate that he performed a physical examination of the patient?

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

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:

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:

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.

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?

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

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?

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.

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Conduct in the presentation of a witness, C2S10 CPRA

Section 10, canon ii, section 10. conduct in the presentation of a witness. – a lawyer shall avoid all forms of impropriety when presenting or confronting a witness., a lawyer shall not coach, abuse, discriminate against, or harass any witness, in or out of the court, tribunal, or other government agency, or talk to a witness during a break or recess in the trial, while a witness is still under examination. neither shall a lawyer direct, assist, or abet any misrepresentation or falsehood by a witness. (2023 code of professional responsibility and accountability or cpra), 1. conduct in the presentation of a witness, a. avoid all forms of impropriety.

Impropriety – means “an improper or indecorous act or remark,” “the quality or state of being improper.” ( Merriam-Webster Online Dictionary )

A lawyer must conduct himself with great propriety, and his behavior should be beyond reproach anywhere and at all times. For, as officers of the courts and keepers of the public’s faith, they are burdened with the highest degree of social responsibility and are thus mandated to behave at all times in a manner consistent with truth and honor. Likewise, the oath that lawyers swear to impresses upon them the duty of exhibiting the highest degree of good faith, fairness and candor in their relationships with others. Thus, lawyers may be disciplined for any conduct, whether in their professional or in their private capacity, if such conduct renders them unfit to continue to be officers of the court. ( Ong v. Delos Santos , A.C. No. 10179, 04 March 2014)

b. No coaching, abusing, discriminating, or harassing any witness

Lawyers are prohibited from coaching, abusing, discriminating against, or harassing any witness, in or out of the court, tribunal, or other government agency. While lawyers may be counsels of their clients during a case, they still are and remain to be officers of the court.

As servants of the law and officers of the court, lawyers are required to be at the forefront of observing and maintaining the rule of law. They are expected to make themselves exemplars worthy of emulation. This, in fact, is what a lawyer’s obligation to promote respect for law and legal processes entails. ( Re: Report on the Financial Audit Conducted on the Books of Account of Atty. Raquel G. Kho , A.M. No. P-06-2177, 10 April 2007)

While a lawyer is entitled to present his case with vigor and courage, such enthusiasm does not justify the use of offensive and abusive language. Language abounds with countless possibilities for one to be emphatic but respectful, convincing but not derogatory, and illuminating but not offensive. ( Gimeno v. Zaide , A.C. No. 10303, 22 April 2015)

On many occasions, the Court has reminded members of the Bar to abstain from all offensive personality and to advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which he is charged. In keeping with the dignity of the legal profession, a lawyer’s language even in his pleadings must be dignified. ( Saberon v. Larong , A.C. No. 6567, 16 April 2008)

A lawyer was held liable for use of offensive and abusive language after he wrote in his pleading that the complainant was a “notorious extortionist” and, in another case, he characterized the opposing counsel as follows: “Her declaration in Public put a shame, DISGRACE, INDIGNITY AND HUMILIATION in the whole Justice System, and the Department of Justice in particular, where the taxpayers paid for her salary over her incompetence and poor performance as a prosecutor…This is a clear manifestation that the Public prosecutor suffers serious mental incompetence as regard her mandate as an Assistant City Prosecutor.” ( Gimeno v. Zaide [2015], supra .)

The judge, in seizing the witness by the shoulder and turning him about, was unwarranted and an interference with that freedom from unlawful personal violence to which every witness is entitled while giving testimony in a court of justice. Against such conduct the appellant-lawyer had the right to protest and to demand that the incident be made a matter of record. That he did so was not contempt, providing protest and demand were respectfully made and with due regard for the dignity of the court. ( In Re Marcelino Aguas , G.R. No. 12, 08 August 1901)

c. No talking to a witness during a break or recess in trial

Lawyers are prohibited from talking to a witness during a break or recess in trial.

The purpose is to ensure that the witness will not be influenced or coerced into making any statements while still on examination, i.e., on the stand.

In a trial, a witness may be called to testify. The witness will be subject to examinations, direct examination for the counsel presenting the witness, and cross-examination by the opposing counsel. If a court calls for a break or recess in the middle of the examination, the witness is still considered under examination throughout the break or recess. Thus, lawyers from both parties are prohibited from talking to the witness to avoid any influence, coaching, or coercion.

d. No directing, assisting, abetting any misrepresentation or falsehood by a witness

Lawyers should avoid directing, assisting, or abetting any misrepresentation or falsehood by a witness. As officers of the court, lawyers play a critical role in the search for the truth and dispensing of justice. Thus, they should not instruct nor take part in any misrepresentation or falsehood by a witness.

If lawyers are aware or has knowledge of the falsity, they should inform the witness of the consequences of making false statements, such as being criminally liable for falsification and/or perjury. Thus, lawyers should encourage witnesses to tell the truth only.

• Canon II, 2023 Code of Professional Responsibility

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In an interview following the sentencing New Mexico special prosecutor Kari T. Morrissey said the prosecutors “respect the judge’s decision.”

“It’s been a difficult case. ... But taking responsibility I think is critical in the criminal justice system and that was something that unfortunately was lacking from Miss Gutierrez,” Morrissey said.

At the start of the sentencing hearing, Morrissey said she reviewed Gutierrez-Reed’s phone calls from jail to inform what sentence length to recommend to the judge. Morrissey said that the calls made by Gutierrez-Reed “tell us who she really is,” that she does not take responsibility for Hutchins’ death and that she “chooses to place blame on the witnesses that testified against her, me, you.”

In an interview following the sentencing Morrissey said that when she heard those phone calls she experienced "compassion fatigue."

"The state has approached this prosecution from a standpoint of compassion for Miss Gutierrez for her age for her lack of experience. And my compassion came to an end," Morrissey said.

Gutierrez-Reed, who was dressed in a khaki prison uniform with a long-sleeve white T-shirt underneath, wiped away tears as Hutchins’ agent, Craig Mizrahi, read a victim impact statement to the court during the sentencing hearing.

"Rust" director Joel Souza, who was also injured during the incident, read a victim impact statement virtually. He said the last two and half years have been “difficult to put into words” and that “I want everyone damaged by Ms. Reed’s failures that day to find peace. ... I want the pain to go away. ... She had a talent for life, she was a touchstone for all who knew her and those of us who were lucky enough to have shared in her fleeting time on this planet were better for it.”

Hutchins’ mother spoke in a video recorded in her native Ukraine. She sobbed as she recalled her life without her daughter, saying, “It’s extremely difficult without her.”

“There are no words to describe. Time does not heal,” she added.

The prosecutors concluded their presentation with a slideshow of photos of Hutchins set to Pink Floyd's "Wish You Were Here."

Gutierrez-Reed was crying as she addressed the court asking for probation, saying that "my heart aches for Hutchins and her friends and family."

She added that Hutchins "will always be an inspiration" and that her "heart goes out."

“I beg you, please don’t give me more time,” Gutierrez-Reed said.

Following Gutierrez-Reed's conviction, the judge ordered the 26-year-old to be held in police custody pending her sentencing. She was found not guilty of tampering with evidence.

In recorded jail phone conversations with her mother, boyfriend and her attorney’s paralegal, Gutierrez-Reed called jurors “idiots” and “a--holes” while complaining about the length of time it took them to deliberate, according to a recent filing by prosecutors.

Also in the phone calls , she said that she would not testify in actor Alec Baldwin’s upcoming criminal trial if subpoenaed and that she wants him to go to jail , too.

The almost two-week criminal trial centered on the shooting on the “Rust” film set in 2021, when Baldwin held a prop gun  that fired a live round of ammunition, killing Hutchins, 42. The bullet also injured Souza.

During the prosecution’s closing arguments, special prosecutor Kari T. Morrissey told the jury that Gutierrez-Reed “was negligent, she was careless, she was thoughtless.”

But Gutierrez-Reed’s attorney, Jason Bowles, said the prosecutors had not proved beyond a reasonable doubt that Gutierrez-Reed was responsible for taking live rounds onto the set and alleged that Baldwin was ultimately responsible for Hutchins’ death.

He also doubled down, saying “What caused her to pass was Mr. Baldwin going off-script and pointing the weapon.”

Bowles added that “the only ultimate act is the pointing of that weapon. Ms. Gutierrez wasn’t in the church, she didn’t point that weapon, she didn’t pull it.”

Baldwin, who is charged with involuntary manslaughter, is set to stand trial in July.

Chloe Melas is an entertainment correspondent for NBC News. 

Dana Griffin is an NBC News correspondent.

Sumiko Moots is an NBC News booking producer.