Expert Witness Cross Examination Advice From SEAK

//Expert Witness Cross Examination Advice From SEAK

Expert Witness Cross Examination Advice From SEAK

 

Hi. My name is Steve Babitsky. I’m the president of SEAK. I’m here today with my partner Attorney James Mangraviti from SEAK. We’re going to be talking about an extremely important topic for expert witnesses; cross examination. Jim, what are the three most important things experts need to know about cross examination?

Jim Mangraviti: Sure. Thanks for the question, Steve. The first thing that I would tell experts all the time is that success at cross examination is all about denying opposing counsel ammunition. What do I mean by that? Don’t do anything dumb. Don’t give the lawyer anything that he or she can use to beat you up and to destroy your credibility.

The way that I like to explain it is that if we have the goods on somebody, if we have the goods on an expert witness, I could teach my little daughter Katie – who’s going into fourth grade, she’s nine years old – how to successfully destroy an expert witness on cross examination, because it isn’t hard. So, don’t give me that ammunition.

Number two, tell the truth and don’t be evasive or, as we also like to say, defensive. Because the minute you’re evasive and you’re defensive it looks like you have something to hide. It looks like you have a dog in the hunt. You just don’t appear to be truthful. You’re better off telling the truth, which is your legal duty, but you’re also going to appear more credible by giving in some points as opposed to fighting everywhere.

The third thing which is one of the hardest things that we teach expert witnesses is you have to actively listen to the question. If you don’t actively listen to the question bad things are going to happen on cross examination.

Steve Babitsky: Jim, can you give me some examples by role playing about these points that you just made.

Jim Mangraviti: Are you asking me to cross examine you?

Steve Babitsky: Please.

Jim Mangraviti: I would be delighted. Why don’t you have a seat? Let’s talk about ammunition first. This is a true example that we’ve adapted from a course that we did down in Florida a few years ago with a federal judge. At the end of the role play after I did the cross examination we turned to the jury and we asked the jury what did you think of such and such this cross examination. The forewoman of the jury raised her hand and she said to the whole class, “I think you ripped him a new one,” which I took to be a big compliment.

Anyhow, it wasn’t because I was a brilliant cross examiner, it was because the expert in question had given me so much ammunition, and this is what happened.

Now, as I understand, Mr. Babitsky, you’re a forensic engineer. Is that right?

Steve Babitsky: That’s correct.

Jim Mangraviti: And in this case you’re giving an opinion on some alleged damage and defects to a building?

Steve Babitsky: Yes.

Jim Mangraviti: Okay, so you conducted a forensic evaluation of a building in this case.

Steve Babitsky: Yes I did.

Jim Mangraviti: Now you have a website, is that right?

Steve Babitsky: We do.

Jim Mangraviti: And on that website you published an article “Ten Things Every Expert Should Do on Every Forensic Evaluation of a Building,” isn’t that right, sir?

Steve Babitsky: Yes, we do have that on our website.

Jim Mangraviti: And one of the things on that list is physically inspect every alleged defect. Is that one of the things on the list, sir?

Steve Babitsky: It’s on the list.

Jim Mangraviti: But you didn’t do that in this case, did you, sir?

Steve Babitsky: No.

Jim Mangraviti: Another thing on your list is photograph every alleged defect, isn’t that right?

Steve Babitsky: That’s what the checklist says.

Jim Mangraviti: But you didn’t do that, either, in this case did you, Mr. Babitsky?

Steve Babitsky: No we didn’t.

Jim Mangraviti: Another thing on your list that should be done in every case is identify all applicable building codes, isn’t that right, Mr. Babitsky? Isn’t that what you wrote on your list on the Internet?

Steve Babitsky: Yes.

Jim Mangraviti: But you didn’t do that in this case, did you?

Steve Babitsky: There were reasons, but I…

Jim Mangraviti: You didn’t do that in this case did you, Mr. Babitsky?

Steve Babitsky: No.

Jim Mangraviti: Another thing you said you’re supposed to do is speak to all available parties to obtain relevant information. You said that on your checklist, didn’t you?

Steve Babitsky: Yes.

Jim Mangraviti: But you didn’t do that in this case, did you?

Steve Babitsky: No we didn’t.

Jim Mangraviti: Another thing you’re supposed to do according to your checklist is preserve all notes and field measurements. You said that on your checklist, didn’t you?

Steve Babitsky: Yes.

Jim Mangraviti: But you didn’t do that in this case, did you, Mr. Babitsky?

Steve Babitsky: No we didn’t.

Jim Mangraviti: You didn’t follow your own checklist of what expert witnesses are supposed to do in a case like this. You had ten things on that checklist. You only did half of them, 50%, right?

Steve Babitsky: Yes.

Jim Mangraviti: You went to school, right, Mr. Babitsky?

Steve Babitsky: Yes I did.

Jim Mangraviti: If you score 50% on an exam, is that a passing grade or a flunking grade?

Steve Babitsky: It’s usually a flunking grade.

Jim Mangraviti: Thank you very much.

What’s the point of the example. This is a real example that we’re going through here. The point of the cross examination is this. I’m not a brilliant cross examiner. I’m somebody that’s got the goods on him. How did I get the goods on him? I didn’t get them on him. He gave them to me by putting this checklist up and then not following his own checklist. You really don’t want to give a lawyer ammunition.

Let’s talk about not being evasive. Steve’s being a good sport here.

Mr. Babitsky, how much money have you made so far in this case?

Steve Babitsky: You talking about gross or net?

Jim Mangraviti: How much money have you made so far in this case?

Steve Babitsky: Well, my office staff handles most of the money, so I’d have to check my records and the billing records. Then, of course, there’s the overhead, so it would be less than the amount of money we took in.

Jim Mangraviti: How much money are you charging per hour in this case? Let’s try to put it that way, because I understand you don’t want to talk about this. How much are you charging per hour to be here today?

Steve Babitsky: Four hundred dollars an hour.

Jim Mangraviti: And how many hours have you worked on this case from the beginning of time up until this very moment?

Steve Babitsky: If you’re counting today and the travel here today probably approximately a hundred hours.

Jim Mangraviti: Okay, so is it fair to say that you’ve earned over $40,000 on this case to date? Is that a fair statement?

Steve Babitsky: Well, some of it’s billed. Some of it hasn’t been paid yet. Again, I have the overhead situation. But, approximately.

Jim Mangraviti: Okay.

What are we getting at here? The more he’s evasive, the more he’s defensive about the money, the more it emphasizes it to the jury. You’re better off just saying I make $400 an hour, I’ve billed approximately $40,000 to date, and force the cross examining attorney to move on. You’re emphasizing things by being defensive, and you’re emphasizing things by being evasive.

The last thing we’re going to talk about, which Steve would agree with me is one of the hardest things that we teach for experts, is to actively listen. I’ll give you a very quick demonstration of that.

Mr. Babitsky, we’re going to talk more about fees again, okay, because I really haven’t had my fill of fee questions with you. How much, Mr. Babitsky, are you being paid for your fraudulent testimony here today?

Steve Babitsky: Four hundred dollars an hour.

Jim Mangraviti: Okay, what’s the problem with that answer? How much? Four hundred dollars an hour, but it’s not fraudulent testimony. I pull that on expert witnesses all the time. Very few of them actually pick up on that. Let’s try doing it the right way.

Mr. Babitsky, how much, sir, are you being paid for your fraudulent testimony here today?

Steve Babitsky: First of all, I’m not offering any fraudulent testimony. Second of all, I’m not being paid for my testimony. I’m being paid $400 an hour for the work that I’m doing on the case.

Jim Mangraviti: Big difference, right? Got to listen to the questions, and it’s a very, very hard skill for expert witnesses to pick up.

Steve Babitsky: Jim, what resources does SEAK provide to help expert witnesses with cross examination?

Jim Mangraviti: Thanks for the question, Steve. SEAK is the expert witness training company. We have a number of resources that can be of assistance.

Number one, if you go to our website, testifyingtraining.com, click on the free resources tab, you’ll see a number of resources there that you can download. Number two, we have a bunch of books that we have written and that we sell that are available in our web store. Number three, we conduct expert witness training seminars in various parts of the country. Number four, Steve, myself, Attorney Nadine Donovan, we work one on one with expert witnesses to help train them.

If you’re an expert witness and you’re looking to get better at what you do SEAK is the expert witness training company. We’re here to help.

By |2018-11-01T11:19:28+00:00September 5th, 2014|Blog|Comments Off on Expert Witness Cross Examination Advice From SEAK

About the Author:

Steven Babitsky, Esq. is the President and founder of SEAK, Inc., the Expert Witness Training Company. He was a personal injury trial attorney for twenty years and is the former managing partner of the firm Kistin, Babitsky, Latimer & Beitman. Steve has helped expert witnesses and their attorneys prepare for deposition in a broad range of cases, including antitrust, patent, medical malpractice, wrongful death, computer forensics, and many others. He has trained the Federal Bureau of Investigation and the Federal Aviation Administration, and he has worked with numerous forensic and financial companies including Fortune 500 companies and has worked with numerous experts to help them expand and grow their practices. Mr. Babitsky is the co-author of the texts How to Be an Effective Expert Witness at Deposition and Trial: The SEAK Guide to Testifying as an Expert Witness, How to Be a Successful Expert Witness: SEAK’s A–Z Guide to Expert Witnessing, How to Write an Expert Witness Report, and How to Market Your Expert Witness Practice Evidence-Based Practices. Attorney Babitsky is the co-developer and trainer for the “How to Be an Effective Expert Witness” seminar and has been the seminar leader since 1990 for the Annual National Expert Witness and Litigation Conference. Mr. Babitsky trains hundreds of experts every year. He may be contacted at 508-548-9443 or stevenbabitsky@seak.com.