Chapter 18 Experts

Questioning experts is not impossible.

So don’t panic.

There are two killer features to calling or cross-examining an expert:

PREPARATION & LANGUAGE.

Experts can be on many things - though in court, most usually concern DNA, forensics, medicine, money, or engineering - in international tribunals, they may also deal with regional politics or history.

The first thing a young advocate usually thinks when contemplating what to do with an expert is that the expertise will be too hard to understand. After all, that is why there is an expert. Whatever the expertise, it must all be too complicated for ordinary minds.

Here's how it goes - you see a report from a structural engineer, with lots of figures and graphs - or from an accountant with even more graphs - or from a scientist offering math to show the statistical improbability of a chance DNA match - or from a pathologist on the effect of carbon monoxide on haemoglobin. And you think: OMG, what am I supposed to do with this!

But take a deep breath.

Advocates are clever folk. If you have got this far in your career, then odds on, you do not have an ordinary mind. Be confident in your ability to get to grips with the expertise.

So, just what do you do with that complicated report?

Well, read it - carefully.

Do not mark the report yet - just let it wash over you. Relax. Enjoy it. Most reports are a great read. You have a case, you know what the issues are, so read the report knowing it is not from outer space - it is relevant, and much may turn on it. Smile at all the math, the chemical formulae, the big words, the pie charts, the x/y axis, and any venn diagrams - they will all make sense soon enough.

Remember, the report has to be relevant to an issue. Identify the issue. And look for what is said specifically about that issue. A lot of the clever stuff is often background, merely leading up to engaging the issue, and looks good, intimidating even, but is not the point.

In any case, whether civil or criminal, usually someone is just plain wrong - the person may be lying, or mistaken, or negligent, or maybe a bit weasely - no matter how many pages, or how complicated it can be made to seem, usually someone has made a mess - so find out who, and work the case.

Now turning to the report, and how it deals with the issues, look with care at the steps leading to the critical point. See if they make sense. Ponder the language of the report. Use a dictionary. Make sure you understand what is written. If you do not, then again, don’t panic! as you will have a conference with the expert at some point, if only at court.

A conference with an expert should not begin with: tell me what this is about? - you should already know - from intelligent reading - and you should only really have questions for clarification or on the issue.

When questioning either, USE LANGUAGE LIKE THE EXPERT.

You really need to get this - please listen up.

You need to be able to ask questions in a way the expert understands. Words will have specific meanings - find out what they are.

Importantly, you want to avoid the expert correcting you in court as to your use of language - pointing out how sloppy you are - or how you don’t understand a precise meaning - all of which makes you look dumb, and if thought dumb, you may not be persuasive later.

It is so easy to avoid this mistake - just read carefully and, I mean it, use a dictionary - if you don’t, you will look dumb, promise.

There are usually two experts - yours and theirs.

With yours, in conference, always ask these five questions - always, always

1 who is more experienced - yours or theirs,

2 what is our best point,

3 what is their best point,

4 if you were on the other side, what would you attack and why,

5 how do we win this?

You will usually find that where there are two reports, they will not be far apart, as experts do not like to call each other ‘flat wrong’ - as despite all the math and charts, there are usually many areas of grey.

This is important to note, as a killer question can often be, of the expert on the opposition side:

Is it right that the degree of difference of opinion between the two reports is perfectly normal within this area of expertise, so that you cannot prove the other expert wrong?

When dealing with theirs, do not get sharp in court.

Experts are regarded as civilised sorts, above the fray. It is unbecoming to put them through a cross-examination grinder. Questions should be designed to tease out bottom lines, and sometimes points of fine distinction, but not to harangue them as liars.

It sits ill with a judge or jury to see an attempt to destroy an expert. Sure, she may be wrong, and even biased, a hired gun, always supporting something which cannot be proved wrong, being always for one side, and therefore with a financial interest to find the same fact - for example, maybe, that a patient is suffering from ‘whiplash’, which is often an injury with no physical symptoms, and which can provoke big debate among doctors — but be careful, an attempt to destroy will usually strike an odd note.

And moreover, most experts will see the strength of a point you wish to make, so that they will often find a way to agree with it in part, to avoid all- out confrontation, where they know there is grey.

So, with their expert, NEVER FORGET COURTESY.

And let's talk language again - when cross-examining their expert, this is where you will come unstuck most easily - namely, if she can correct your use of language, and show you up as stupid. So make sure you understand what specific words mean to her - there is no excuse for not understanding scientific terms - to have become an advocate, you will have had a good education, rely on it, open the books, and get to grips with the expert's world.

Thorough preparation ought to mean you become an expert too!

On that point - for that case - on that day - you're another expert.

And be sure each question is focused, precise, one point at a time.

Most examinations of an expert go wrong, whether in chief or on cross, for want of knowing precisely what you want each question to establish - so, like I say, really prepare.

This is the one area where it is wise to write out many questions in advance, to get the use of language right, weeding out ambiguities, and to refine the focus of the advocate.

Sometimes there is just one expert, appointed by the court, whose evidence is supposed to be agreed between counsel.

I am sceptical this works. It relies on the theory there is only one answer to a matter, when often expertise is more an art than a science, with much room for different views.

If dealing with one expert, then more than ever you need to be an expert for a day, to bend in pre-trial conference the position of the lone expert most favourably to your positon. Such a conference usually takes place in the presence of both counsel, and it amounts to a delicate questioning process, outside court, with the other counsel listening in and seeking to steer the expert her way.

When this occurs, the counsel who has prepared best will usually win. This is because - firstly the expert will see you have become quite an expert yourself, as distinct from your opposition, and sensing your potency while knowing there is often grey, will want to find the middle ground to agree with you and not be shown a fool - and secondly, if you know exactly what you want, and what is feasible, how to use language right, and understand the area well, then you’ll usually make sense to the expert, reach agreement, and therefore get your way.

And remember, you are the expert in court.

You know how things work, how to ask questions, what the other witnesses have said - you have an advantage - so, please do not ever be worried by expert evidence - you can nail it every time.

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