Delaware Trial Handbook § 18:9. CROSS-EXAMINATION OF EXPERTS

The rules relating to cross-examination105 apply generally to experts. An expert may not be impeached by referring to criticism of that expert in another case by a non-expert.106 It is also improper to attempt to impeach an expert by referring to the opinions of non-testifying experts for an adverse party. This puts before the jury opinions from persons who will not be subject to cross-examination. The risk is that out-of-court experts may be improperly viewed by the jury as having equal or greater weight than the testimony of experts who appear and testify.107 One court has also held that it is improper to attempt to impeach a medical expert in a medical malpractice case with questions about his own professional disciplinary history, on the ground that the expert’s prior misconduct is not probative for truthfulness or untruthfulness, and the probative value of the testimony concerning the disciplinary history is outweighed by its prejudicial effect.108

A common method of impeaching experts is by asking them about the fees they are receiving for their testimony, thereby suggesting that the experts are merely “hired guns.” If the party cross-examining the experts has experts of its own, counsel should be cautious in using this technique, as the cross-examining party’s experts will be subject to the same line of questioning to show that all experts charge fees, and so receipt of such fees is not evidence of bias.109

A cross-examiner may attempt to limit the ability of an expert witness to explain the basis for his or her answers. A cross-examiner, trying to make points, will usually want and often seek short and simple answers. Especially if the jury is the trier of the facts, short and simple answers are more likely to be effective and possibly even misleading in a way favoring the cross-examiner.  Aggressive cross-examiners try to take matters into their own hands by instructing the witnesses to limit their answers to a question or questions to a simple “yes” or “no.” The manner of the cross-examiner can be or become bullying. Counsel should interpose an objection to attempts by the cross-examiner to instruct the witness directly and demand that any request for instructions to the witness be directed to the court. Counsel should also insist that witnesses be instructed that simple “yes” or “no” answers not be given if such answers might be misleading without an explanation. In preparing an expert witness, counsel should admonish the witness that during cross-examination the answers should be full but only long enough not to be misleading. The trial judge has a balancing act to perform, since the testimony can get out of hand if a witness is given free rein.

It is the practice in some courts to control the matter by forbidding the witness to give any explanation to his or her answer. This is based on the proposition that any explanation can be elicited on redirect examination. This approach tends to emphasize the gamesmanship aspect of a trial over an approach which seeks the best way to ascertain the truth. Without permission of the court, counsel may not be able to confer with the witness before the redirect examination110 and thus may be unaware of the explanation in the witness’s mind. Even if the witness confers with counsel before redirect, the witness may not be able to recall all the answers calling for an explanation. In any event, the efficiency and effectiveness of a procedure where the testimony of a witness may appear to be something that in reality it is not and then be corrected at a different point during the proceedings is highly doubtful. Attorneys who are interested in an effective presentation aimed at the truth should present a firm objection and request the court to permit a full but compact response to the question.

Counsel should advise the witness, prior to the witness taking the stand, to make notes at the close of cross-examination as to points that need to be made, but which were not made, in response to the questions of the cross-examiner. Counsel should ask the court for permission to confer with the witness in order to ascertain the areas of exploration that need to be considered. Counsel should also advise the witness before the start of the witness’s testimony that if the witness should be restricted from answering in as complete a manner as the witness thinks is necessary, the witness should add to his or her answer a short phrase such as “with explanation” or “with further explanation.” This will serve to alert counsel as to areas where redirect will be needed.

105. See ch. 16.

106. Steigler v. State, 277 A.2d 662, 668 (Del. 1971), vacated in part on other grounds, 408 U.S. 939 (1972).

107. Esry v. St. Francis Hospital, Inc., C.A. No. 99C-09-209JEB, slip op. at 4, Babiarz, J. (Del. Super. Apr. 15, 2002), aff’d mem., 812 A.2d 900 (Del. 2002);  Mancari v. A.C. & S. Co., Inc., C.A. No. 85C-NO-119, Taylor, J. (Del. Super. July  31, 1990) (ORDER).

108. Ness v. Bayhealth Medical Center, Inc., C.A. No. 05C-02-130 SCD, Del Pesco, J. (Del. Super. Aug. 10, 2006).

109. See Kocher v. Capodanno, C.A. No. 85C-MY-26, slip op. at 2, Balick, J. (Del, Super. Aug. 31, 1990).

110. See § 13:3 for a discussion of counsel’s ability to consult with a witness in the course of testimony.

© 2010  David L. Finger