Cross exam of the expert - why jab when you can stab.
Photo: Framed picture of me with my best friend in the whole world Shellie on her wedding day. Sitting in my bookcase .
Prologue:
Shellie: I'm addicted to Drop Dead Diva. You were right.
K3: I know - isn't it entertaining.
Shellie: Who would have thought.
K3: It is such a ludicrous concept, but executed so brilliantly.
Shellie: I love how she flicks her hair over her shoulder when she scores a point.
K3: You get the case in the morning and try it in the afternoon.
Shellie: So entertaining.
K3: I love how it just takes a few sentences to shred a witness in cross exam. In fact, she has inspired me to change the way I do cross. Instead of pecking at the expert, now I get right to it. While being completely sweet and charming at the same time of course.
Case study:
Am co-counseling on an asbestos case handling damages. The defense is presenting its economic expert. Typically not a real jazzy point in trial. Am listening to the attorney qualify the witness. Have never encountered this witness before. Know pretty much nothing about him. Here is the beginning of direct. I've highlighted the words that catch my attention:
82
16 DIRECT EXAMINATION
17 BY MR. WOOD:
18 Q. Good afternoon.
19 A. Good afternoon.
20 Q. State your name and address.
21 A. Mark Newton. And my address here in Seattle
22 is 1601 Fifth Avenue, Seattle 98101.
23 Q. And why are you here?
24 A. I'm here to testify regarding the economic
25 damages of the plaintiffs in this case.
83
1 Q. Could you give me a brief summary of your
2 educational background?
3 A. Well, I went to college for one quarter at UC
4 Santa Barbara back in 1970. And then I transferred to
5 UCLA later that year. And then graduated with a
6 degree in economics in 1974. And that's basically it.
7 So I have a degree in economics.
8 In terms of education after that, I did
9 that to take some additional accounting courses after
10 graduating to qualify to sit at the CPA exam.
11 Q. Okay. And you are presently licensed as a
12 CPA in the state of Washington, is that correct?
13 A. Yes.
14 Q. Okay. Why don't you give me a brief overview
15 of your professional background?
16 A. Sure. Yeah. Well, I have worked for this
17 company HSNO. I began in that -- in those initial --
18 it wasn't that when I started. It was accounting
19 under the name of the founder of the firm back then.
20 Anyway so I have worked technically for the same
21 company since 1974. Since I graduated from UCLA. And
22 so generally my work has been in forensic accounting
23 and economics. And I became a CPA.
24 I do a lot of work in cases like this,
25 where we are talking about economic damage on what I
84
1 would call personal economic cases. I personally do
2 wrongful death. We also do a significant amount of
3 work and other commercial types of disputes in courts.
4 So contract disputes. Other damages. Unfair business
5 practices, wherever we are evaluating the effects of
6 business from some alleged action. And in terms --
7 basically in terms of property damage. And then I
8 also do quite a large cases involving (inaudible)
9 cases, where somebody is concerned that someone who is
10 managing a business, for instance, may have been
11 misusing the assets of the business. So we get
12 involved in tracing that kind of work.
13 And then the last category, generally
14 speaking is we do a lot of work on insurance claims.
15 So these would be fires, floods, hurricanes, things of
16 that nature. And we help determine how much --
17 usually, usually business interruption type lawsuits
18 would be paid under an insurance policy.
19 Q. And you may have said this and I missed it,
20 but what does HSNO stand for?
21 A. Well, Hagen, Streiff, Newton & Oshiro.
22 Q. And that's the name of the company you are
23 working at?
24 A. Yes.
25 Q. And have you ever taught any courses?
85
1 A. Well, I have taught -- in essence, yes. I
2 have taught a lot of classes over the years, usually
3 in the context of seminars at conferences. So usually
4 professional organizations. And I address certain
5 topics in those cases, yes.
6 Q. And I think you mentioned you have been
7 qualified to testify as an expert in courts of law
8 before, is that correct?
9 A. Yes, I have.
10 Q. Which courts?
11 A. Well, primarily -- actually this was the
12 first chance I have had to testify in the state of
13 Washington. But I testified very often in California.
14 I started off my career in California and I have been
15 here for about 9 years. And just hadn't had this
16 opportunity for that time. But I testified at scores
17 of times in California. Testified in federal court
18 cases in Nevada, Ohio. Where else have I testified
19 at? I have testified before the International Trade
20 Commissioner in the late '80s. I even testified in a
21 case in Seoul, Korea.
22 Q. And you have been retained on occasion for --
23 as an expert for plaintiffs in personal injury
24 lawsuits, is that true?
25 A. Yes.
86
1 Q. But when it comes to asbestos lawsuits have
2 you been retained by plaintiff/defendants?
3 A. Always on the defense on asbestos cases we
4 have just -- over the years it's evolved where we work
5 for only the defendants.
6 Q. What's the hourly rate you charge for your
7 testimony?
8 A. For my testimony it's $450 per hour.
9 Q. Okay. And could I ask you that when you give
10 your opinions for me here today, that you do so with a
11 reasonable degree of scientific certainty?
12 A. Yes.
13 Q. And you agree that you will give me opinions
14 that are more likely than not true?
15 A. Yes.
The expert is very professional looking. Wearing a gorgeous tailored suit that puts mine to shame. He is poised, confident and pleased with how fluidly the well scripted direct is going.
Skip now past 20 more pages of testimony and the laying down of his opinions.
Time for a Drop Dead Diva moment. I summon the persona of Drop Dead Diva and approach the witness. Let's begin by breaking all cross examination rules and leading off with an open ended question.
108
13 CROSS EXAMINATION
14 BY MS. KOEHLER:
15 Q. Can you -- sorry, can you tell me your degree
16 in economics, what was your degree?
17 A. It's a Bachelor of Arts degree in economics.
18 Q. So when counsel asked you to testify within a
19 degree of scientific certainty, you are not capable of
20 doing that, are you?
21 A. Well --
22 Q. You are not a scientist?
23 A. Well, I wouldn't call myself a scientist, but
24 I would call myself a forensic economist.
25 Q. So let me repeat my question. Counsel asked
109
1 you if all your opinions were based upon a scientific
2 certainty, and you are unable to testify to that
3 level, am I correct?
4 A. I don't recall if that was the exact question
5 I was asked or not. But I think in terms of what,
6 what I --
7 Q. I just asked you a very specific question.
8 A. Okay. I don't recall if that was the exact
9 question and answer.
10 Q. Assume that that was the exact question that
11 was asked to you. Did you tell this jury that all
12 your opinions are made within a -- a degree of
13 scientific certainty? Assume that question was made
14 to you and you said yes. Is that an incorrect
15 statement of your capacity to give an opinion to this
16 jury?
17 A. If under your hypothetical that was the
18 question asked and that was the way I answered it,
19 yes. I don't think I could answer with certainty on
20 what more or less probable. And I thought that was my
21 answer, but I apologize (inaudible).
Turn, sashay off and flick my hair over my shoulder...before resuming the rest of cross which includes of course a few more reminders of how well he was stabbed right out of the gate.
113
17 Q. And is that what you are saying to this jury
18 is that the lost wages and lost earning potential are
19 the same?
20 A. In this case, yes.
21 Q. Okay. Well, that's an assumption that you
22 are making.
23 A. I don't believe it's an assumption. It's a
24 conclusion that is my opinion that that would be the
25 case in this case.
114
1 Q. And your opinion is on the basis of what
2 a -- to what -- what is the basis of your opinion?
3 What is the -- what is the expertise of your opinion
4 so that we know what to call it? Do you agree that
5 it's not to a scientific level. What it is? [Eyes wide and shrug shoulders to the jury]
6 MR. WOOD: Objection, vague.
7 A. Well --
8 THE COURT: Well, if you understand it,
9 you can answer it.
10 A. Yes. I think the -- when you threw in the
11 scientific reference to the scientific method, I'm not
12 sure what you mean in that phrase.
13 Q. (By Ms. Koehler) Well, I didn't come up with
14 that, your counsel did.
15 THE COURT: Okay. You know, you need a
16 question, okay.
17 MS. KOEHLER: Okay. I'm sorry, Your
18 Honor.
19 Q. (By Ms. Koehler) The question is: What
20 degree of -- what is your testimony, what is your
21 opinion, what is it called? Is this just a more
22 probable than not opinion, or do you have some kind of
23 way to do your opinion that you would like us to
24 consider?
25 A. Well, it's my -- I'm sorry.
115
1 MR. WOOD: Objection, vague.
2 THE COURT: Do you feel you can answer the
3 question?
4 THE WITNESS: I think I can.
5 THE COURT: Go ahead.
6 A. Well, I think it's the basic premise that I
7 am using is more probable than not.